Judiciary of Nepal II Nepal's Judiciary

Judiciary of Nepal 

Judiciary is one of the three organs of the state. Judiciary in democracy protects the fundamental rights of the citizens, safeguards the constitution and delivers justice to all who approach this organ of the state by its decisions, orders, injunctions and writs. For example, the Supreme Court of Nepal on January08, 2017 (Poush 24,2073) quashed all the activities related to the appointment of Lok Man Singh Karki as the chief of the Commission for the Investigation of Abuse of Authority (CIAA) and declared him unfit (not meeting the high moral standards and related expertise in this area ) to continue in the post. The Supreme Court issued a mandamus order (writ ) in the name of the Constitutional Council and the President's Office to appoint a person meeting constitutional qualifications to the position of the Chief of the Commission for the Investigation of Abuse of Authority. Judiciary in democracy functions as an independent (autonomous) institutions. Judiciary is not interfered in by other two organs of the state namely legislature and executive-in accordance with the provisions laid out in the constitution. Independence of judiciary is necessary to protect the liberty of individuals. Noted French writer Montesquieu had suggested the doctrine of 'separation of powers' in 1748 to segregate the judicial function from the legislature and executive function in order for judiciary to act as the saviour of democracy and to safeguard the fundamental rights of the citizens. Such a separation limits the possibility of arbitrary excesses by the executive and the legislature.

Judiciary functions with the help of judicial interactions that take place between the Bench (judges acting as court offices while deciding upon case ) and the Bar ( pool of advocates /lawyers acting as court advisors) . A 'Judge' is a government official who administers the law in court of justice by supervising trials, instructing juries, and pronouncing judgements and sentences. Judges working at different levels of court hierarchy such as District Courts, High Courts and the Supreme Court are instrumental in delivering justice and protecting the spirit of democracy by their pronouncements, decisions, sentences, orders, injunctions, directions and advices. Lawyer/Advocates is a private practitioner of law who contests case of his clients in court of justice  before a judge and charge fees from the clients for providing the legal services. 

Need or Importance of Independent Judiciary in Democracy

No democracy in the world can succeed unless judiciary is independent. First Chief justice of Nepal Hari Prasad Pradhan had made tremendous contributions after the abolition of Rana rule to achieve independence of judiciary. His support for constitutionalism, the rule of law, separation of power and independence of judiciary in the events of political onslaughts in early 1950s laid the foundation for democratic legal system in modern Nepal. In the early fifties (1950s ) Chief Justice Pradhan ruled that the First High Court of Nepal established under the High Court Act of 1952 was the 1952 was the highest judicial court of modern Nepal in any sense and therefore was entitled to test the constitutionally of all laws and state actions until the present Supreme Court replaced it on May 21, 1956 (Jestha 8, 2013) . This was a bold assertion for maintaining the independence of judiciary.

Following are the reasons why 'Independent Judiciary' is needed in a democratic country like Nepal :

1.Judiciary -Saviour and Interpreter of Constitution:  Constitution of Nepal is the supreme law of the land through which various organs of the government derive their power and authority. Quite naturally, differences with regard to sharing and separating the powers between the organs of the government (and constitutional bodies) crop up from time to time. In such a situation, the existence of an independent and impartial judiciary is essential to interpret the constitutional in democratic spirit and remove the differences. For example, the Supreme Court verdict on January 08, 2017(Poush24, 2073) observed that Lok Man Singh Karki failed to meet the criteria as mentioned in the Constitution. The court further explained that Karki did not have high moral standards as he was proved guilty of suppressing the 2006 People's Movement (Jan Andolan-II) by the investigation commission led by former justice Krishna Jung Rayamajhi and at the same time his experience in civil service was also not sufficient to hold the top position as the Chief of the constitutional body CIAA.

Honouring constitutionalism and establishing the rule of law are two sides of the democracy. Independent judiciary makes it sure to maintain the democratic fabric of the constitution by interpreting the constitutional provisions in its ' true letters and spirit'. Both the executive and legislature have to tread cautiously and should not sabotage democratic practices by amending the constitution to grab political power. The Supreme Court in such a situation declares such laws constitutional amendments as "ultra vines" or "unconstitutional".

2. Judiciary- Protector of Fundamental Rights :  Part 3 of the Constitution of Nepal , 2072 BS provides for a set of fundamental rights to Nepali citizens. It is mandatory to provide safety measures to citizens in case their fundamental rights are  violated either by state machinery or by the action of any individual. The safety measures come from judiciary that prevents the violation of fundamental rights and compensates the citizens. For example , Supreme Court of Nepal gave the orders to release " political detainees" during the King\s direct rule in 2005 (2061 BS) and had given decision to lift the ban on broadcast of news from FM radios during the royal regime. Judiciary's commitment to safeguard the fundamental rights of the unprivileged class was further highlighted when the verdict of the Supreme Court ensured citizenship rights to the children of Badi communities. The Supreme Court had earlier stuck down the amnesty provision of the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 (TRC Act) enacted in May 2014. In this context, the Court ruled that only the judiciary, and not the Commission established by the TRC Act, can determine the criminality of any violations committed in the context of the country's decade-long conflict. Thus, Nepal's Supreme Court has firmly reasserted the right of the victims of human rights violations to seek justice.

3. Judiciary-Umpire in the Political Play of Democracy :  Both the executive and legislature are active organs of government engaged in ' power politics' . Political parties in competitive politics turns the legislature as hotbed of opportunistic politics. People are befooled by the antics of political leaders and welfare of the state takes the back seat in the race of grabbing plum political posts . Judiciary is the only non-political organ of the government that acts as an umpire and supervises the democratic 'fair play' of the political parties. Judiciary through its timely pronouncements safeguards the democratic nature of Nepali polity . For example, as per the original provisions of the Interim Constitutions-2063 BS, the new constitutions was to be promulgated by April 28, 2010 (Baisakh 15, 2067), but the Constituent Assembly postponed the promulgation by a year because of disagreements amongst the political parties. On May 25, 2011 (Jestha 11, 2068), the Supreme Court of Nepal reminded the political parties of their sacred duty in democracy and rule that the 2010 extension of the Interim Constitution was not reasonable. 

Judiciary of Nepal: Organization, Qualification, Jurisdiction 

Part 11 of the Constitution of Nepal 2072 BS has provided for the following structure of the unified judiciary in Nepal. 

1. Supreme court: The supreme court is the apex court seated in Kathmandu and therefore is the highest court in Nepal. The Supreme court consists of one chief Justice and other 20 judges. The Supreme court is the court of records. Unless otherwise provided in the constitution, all other courts and judicial institutions are under the control of the Supreme Court. The Supreme Court shall have the final power to interpret the constitution and law. The Supreme Court may inspect, supervise and give necessary directives to courts and other judicial institutions falling under its jurisdiction on matters relating to judicial administration and management. All other courts in the country follow and apply the interpretation of constitution and law or the legal principles propounded by the Supreme Court in relation to court cases. The supreme court can initiate a contempt of court case against anyone obstructing its or its subordinate court's act of judicial execution or not abiding by its order or verdict. 

2. High Courts: Every province of Nepal has one high court. Cases in appeal shall came to the high court from district courts of Nepal. The High Court can initiate a contempt of court case and punish anyone obstructing its or its subordinate court's act of judicial execution or not abiding by its order or verdict. In addition to the Chief Judge, every High court has several other judges fixed by the federal law. 

3. District Courts: Every district of Nepal shall have on District court where the cases of civil and criminal nature receive the first hearing and consequent decisions. The local level judicial institutions established according to the provincial law remain under the control and supervision of the District Court. The District court may inspect, supervise and issue necessary instructions to its subordinate judicial institutions. 

Appointment and Qualifications of Judges 

Following are the provisions regarding appointment and qualifications for the judges of Supreme Court, High court and district courts: 

1. Appointment and qualifications of Chief Justice and Justices of the Supreme Court (Part 11, Article 129) 

The president appoints a Chief Justice on the recommendation of Constitutional council and Justices of the Supreme Court on the recommendation of Judicial council. Any person who has worked as a Judge of the Supreme court for at least three years is eligible for appointment as Chief Justice of the Supreme Court. Once appointed, the Chief Justice continues to remain in office for six years. Any Nepali citizen who holds a Bachelor degree of Law and has worked as chief judge or judge of the High court for five years or has practice law for at least fifteen years as a law graduate senior advocate or advocate or has worked at least fifteen years in the judicial or legal field or has worked as a gazetted officer first class or above of the judicial service for at least twelve years is eligible for appointment as a judge of the supreme court. 

B. Appointment and Qualifications of chief judge and other judges of high court of Nepal (part 11, Article 140) 

The Chief Justice, on the recommendation of the Judicial council, appoints the chief judges and judges of the High Courts. Any Nepali citizen who has a Bachelor's degree in law and has worked as a district judge for at least any five years or has practiced as a law graduate senior advocate or advocate for at least ten years or for at least ten years has either taught Law or conducted research thereon or worked in any other field of law or justice or worked in any post of gazetted first class officer of the Judicial Service for a period of at least five years shall be considered eligible for appointment as Chief Judge or other Judge of the High court. 

C. Appointment and Qualifications of Judges of district courts ( Part 11, Article 149) 

The Chief Justice, on the recommendation of the Judicial council, appoints the judges of the district courts. The positions of vacant district court judges are fulfilled in the following manner: 

1. Out of the total vacant positions, 2o percent positions are to be fulfilled through appointment of the second class officers of the judicial services who have completed Bachelor's degree in law and having completed at least three years of service, based on seniority, qualifications and evaluations of performance; 
2. Out of the total vacant positions, 40 percent positions are to be fulfilled through appointment of the second class officers of the judicial service who have completed Bachelor's level in law and having completed at least three years of service, based on open competitive examination. \
3. Out of the remaining positions, 40 percent of positions are to be fulfilled through an open competitive examination from amongst Nepali nationals who have the Bachelor's degree in law and worked as an advocate for eight years or at least eight years in any post of gazetted second class officer having complete Bachelor's degree in law or persons who have practiced law or have either taught law or conducted research thereon or worked in any other field of law and justice for at least eight years. 
4. Judicial service commission, after taking written and verbatim practical examinations according to the law from among the persons with necessary qualifications as mentioned above, recommends to the judicial council according to the merit list for appointment as district judge. 

Importance of Judiciary 

The importance of judiciary can be summarized in the following points: 

1. It ensures rights and duties of a citizen along with equity and equality. 
2. Provides justice to the infected person and punishes the criminals. 
3. Interprets the constitution and looks after internal and external affairs of the country. 
4. Ensures transparency, good governance and rule of law in the country. 
5. Co-ordinates between the executive and legislature and cancels their decision in case of bad decisions taken by politicians. 
6. Helps to terminate and rooting corruption and making country corruption free. 
7. One can fight for their rights whereas also looks affairs between states, provinces and local level. 

Provisions that Ensure Independence of Judiciary in Nepal 

For institutionalization of democracy in Nepal and for rooting out corruption from all the departments including the courts of law, it is imperative to have independent judiciary in the country. Following provisions in interim constitution safeguard the independence of judiciary: 

1. The appointment of judges is not rooted in personal favoritism or political bias. Judges in Nepal right from the apex court to the lowest court in a district are selected and appointed by following set procedures involving the constitutional bodies like constitutional council, judicial council and judicial service commission. 
2. A judge cannot be dismissed from service until s/he retires at the age of 65 years in case of apex court and 63 years for other judges. Removal before the term through impeachment in parliament based on the same grounds as it applies to the President for proved misbehavior and misconduct. 
3. The salaries and allowances of the Chief Justice and other judges of the supreme court are charged from the Consolidated Fund of Nepal and cannot be reduced by the Parliament. 
4. Parliament is not authorized to discuss the conduct and behavior of a judge when session is in program. 
5. A retired judge of the supreme court cannot plead in any court or tribunal of Nepal.