Nepali Legal and Judicial System: An… 63

Nepali Legal and Judicial System: An Overview

Dipakraj Joshi
Rajesh Kumar Katuwal

The history of judicial system of Nepal has gone through various phases, i.e. from
uncodified to codified laws; from Kingdom to democracy and from customary to
legislative. Current Nepali judicial system is three tiers. In the early years of its
establishment the Apex Court was called Pradhan Nyayalaya, later on, it came to be
called as Supreme Court. Several amendments were made in the hierarchy of the Courts
between 1951 and 1990. A range of Rules and Acts were passed to ensure independence,
efficient administration and working of the judiciary. There are many powers vested in
the Supreme Court and judicial and extra-judicial bodies. The Supreme Court hears
through different benches to hear different matters. Lower the Supreme Court there are
Court of Appeal and then District Courts. Many trial and pre-trial procedures have to be
followed by the Courts, investigating agencies and attorneys to reach on a decision. The
different levels of qualification and working experiences are required for the
appointment of judge in the Courts. Training programs are conducted by National
Judicial Academy for the judges, judicial, quasi-judicial and court staff to educate and to
make understand their responsibilities to ensure fair trial. However, still there is a need
to fight corruption in the judiciary. This will ultimately result into strong, well equipped
and independent judiciary.

1. Introduction
The history of judicial system has passed long journey. The historical development
of Nepali legal system including overall justice system can be traced back to the
750 BC. Before this, no authentic document regarding the development could be
found. Basically, the development of justice system is divided into two eras for
comprehensive understanding of Nepali legal and judicial system. The first era
represents uncodified law consisting of Kirat, Lichhavi and Malla period. The
second era starts from commencement of codified law in 1854 AD. The cut off
period between the two is 1854 AD from where the Country Code (hereinafter
referred as the Country Code) 1854 came in to effect to regulate the society.

In Kirat period, the society was regulated by the religious scriptures, custom,
tradition and order of the King. The dispute used to settle based on religious


Honorable Justice of Supreme Court of Nepal. This paper was presented in the High Level Judicial
Officials' Conference held in Seoul, South Korea.

District Government Attorney, Mr. Katuwal holds LL.M. in Criminal Law from Tribhuvan
University, Nepal.
64 NJA Law Journal 2014

scriptures. The dominant religious scripture was Kirat Mundhum1 which was the
basis for settling disputes. The disputes were settled by the Punch Bhaladmi by
hearing two parties in an open place. Both the parties had been given an
opportunity to produce evidences on his/her own behalf before giving verdict on
disputed matters. Most of the cases were settled through mediation and
conciliation between the parties. Besides this, the administration of justice was
considered as prime duty of the King. Similarly, the justice system of Lichhavi
period was also pervasively influenced by the religious scriptures including Sanad,
Sawal as a form of order of the King. The Malla period was different from that of
Kirat and Lichhavi period from the point of view of dispensing justice. In Malla
period, the written code named 'Manav Nyayashstra' was introduced by the then
King Jayastithi Malla to regulate the society as well as to administer justice. It was
promulgated as a form of code intending to make uniformity in dispensing justice
in civil and criminal matters.

The Country Code, 1854 (the Country Code) was the first modern codified law in
the legal history of Nepal. The first Rana Premier Junga Bahadur Rana made a
greatest contribution to the Nepali people by giving the codified law. For the first
time, this Country Code tried to introduce the rule of law in Nepal. The
promulgation of the first code of Nepal enacted on 5th January 1854, had opened a
new phase in the history of crime and punishment. The code was in operation up
to 1963 (with amendments) and many important clauses from the same code were
placed in the present Country Code.2 This Code was made by the Kausal (Council)
comprising Bhardars (Courtiers). The prime objective of this Code was to maintain
uniformity in the administration of justice applying written legal rules.

The Government of Nepal Act, 1948 was issued in the form of the first
constitutional instrument incorporating some democratic ideals. This
constitutional instrument had incorporated the provision related to Pradhan
Nyayalaya (Apex Court) as a final authority for deciding the disputes. However,
this Act never came into force because of the continued reluctance of the Rana
rulers to implement it in reality. Immediately after the revolution of 1951, the
Interim Government of Nepal Act was promulgated incorporating the principles of
the personal liberty, check and balance, independent judiciary, rule of law and so
on.

As the Government of Nepal Act, 2004 BS and the Interim Government of Nepal
Act 2007 BS, the laws and the constitutions issued thereafter were also influenced
by the adversary system of legal tradition. The Constitutions of 1959, 1962 and
1990 recognized the precedents propounded by the apex court as one of the
binding sources of law. Besides, the apex court was constitutionally allowed to

1
Keshav Bahadur. KC, Judicial Custom of Nepal, Quoted by, Rewati Raman Khanal, An Outline
of Nepali Legal History, Shreemati Sarswoti Khanal, Kathmandu, (2059) p. 22.
2
T.R. Vaidya and T.R. Manandhar, Crime and Punishment in Nepal: A Historical Perspective,
Bini Vaidya and Purna Devi Manandhar, Kathmandu (1985), p. 191.
Nepali Legal and Judicial System: An… 65

review the parliamentary enactment and executive actions if they were deemed
inconsistent with the Constitution.

The Interim Constitution of Nepal, 2007 (the present Constitution) issued, in the
form of sixth constitutional instrument, follows the adversary legal tradition in a
constitutional development. One of the basic objectives of the constitution is to
establish an independent and competent system of justice viewing for the purpose
of transforming the concept of the rule of law into a reality. Keeping this in mind
the constitution has granted all powers relating to justice to the court and other
judicial institution to be exercised in accordance with the Constitution, laws of
land and recognized principles of justice. At present, the Nepali justice system is
basically operated through following instruments:

 The Interim Constitution of Nepal, 2007

 The Country Code (the Country Code) 1963
 The Administration of Justice Act, 1991
 The Supreme Court Act, 1991
 The Supreme Court Rules
 Court of Appeal Rules
 District Court Rules
To implement the substantive provisions of above mentioned Acts, the Rules have
been framed as per the necessity ensuring Nepali legal regime more effective and
efficacious. Side by side, the judiciary has been launching strategic plans for
judicial reform and providing quality and speedy justice to the people since 2004.
The second strategy plan is just over and is third plan in operation.

After the ratification of Convention on Rights of the Child, 1989, the Children Act,
1992 has been enacted to protect rights of the children and to ensure juvenile
justice system in court proceedings. This Act has provided the provision of
Juvenile Court to hear cases related to juveniles, but the Juvenile Court has not
yet been established. Instead, juvenile benches are in operation in some 41 District
Courts. The juvenile bench is composed of presiding District judge including child
psychologist and social worker. In 2063 BS, the Juvenile Justice (Procedure) Rules
were enacted to regulate investigation, prosecution and adjudication process
basically concerning juvenile delinquent behaviours. The legal representation and
social report is essential before coming to a decision in such case by the court.

Efforts have been made to introduce Code system from the very beginning but the
legislature has not been able to do so. The Penal Code, Criminal Procedural Code,
Civil Code, Civil Procedural Code and Sentencing Bill have been drafted to replace
age old legal provisions contained in the Country Code, 1963. The Penal Code has
tried to introduce emerging trends in the area of criminal law. Similarly, the Civil
Code has also tried to introduce new concept to regulate civil matters amongst the
citizens. It has tried to incorporate following legal provisions:
66 NJA Law Journal 2014

 Law relating to person,

 Law relating to family,
 Law relating to property,
 Law relating to inter country adoption,
 Law relating to contract and other civil obligation, and
 Law relating to private international law.

2. Judicial System and Organization

The system of justice of Nepal for a long time was dispensed through the rich
philosophical and religious scriptures. Though the King was ultimate source of
justice, the justice was delivered by the authority referred to as Dittha and Bichari
who were specially deputed to do this job. In the later part of the Nepali judicial
history, Kotilinga and Itachapali (trial courts) were constituted to impart justice in
civil and criminal matters separately.

In 1941, Pradhan Nyayalaya (apex court) was established as highest court which
was, later on, incorporated in the Interim Government Act, 1951 giving
constitutional recognition of highest judicial level. The Pradhan Nyayalaya Act,
1952 was enacted to regulate the apex court, providing power and functions of the
court. It had a power to exercise original jurisdiction, hear final appeals and review
its decisions. The court had power to issue writs of habeas corpus, mandamus,
prohibition, qua-warranto and certiorari for the enforcement of the rights
infringed by the abuse of power of the state.3 The decision of this court was taken
as final and incontrovertible.4

In 1956, Supreme Court was established replacing the Pradhan Nyayalaya aiming
at constituting more dignified court as well as furthering strengthening of judicial
system. It also had the responsibility of protecting the people's basic rights,
transforming and moulding laws to suit the democratic spirit and aspiration of the
people.5 The Supreme Court issued license to the private law practitioners and
thus laid the foundation of the Bar in Nepal in the first year of its establishment.6

The Nepali judiciary had faced frequent changes in its hierarchical position from
1951 to 1990. Between 39 years of its journey, hierarchy of the judiciary was
changed through the legislative enactments and constitutional provisions. In
1955, the Administration of Justice (re-organization) Act was enacted to introduce
District Court replacing Appellate Court and Ilakea (Area) Courts to replace trial

3
Section 30, the Pradhan Nyayalaya Act, 2008.
4
Article 32, the Interim Government Act, 2007.
5
Dr, Ananda Mohan Bhattarai, The Judicial System of Nepal; An Overview, Fifty Years of the
Supreme Court of Nepal, Golden Jubilee Publication, (2006), Supreme Court of Nepal, p. 17.
6
Ibid.
Nepali Legal and Judicial System: An… 67

courts i.e. Amini and Adalat. But the Act could not come into force. So the
proposed arrangements could not take place.7

The Administration of Justice Act, 1960 materialized the scheme laid down by the
Administration of Justice (re-organization) Act, 1955. This Act provided for four
tiers of judicial hierarchy. The Ilaka Courts were established as court of first
instance replacing Amini and Adalat. The District Courts were established as the
court of first appeal. The Supreme Court continued to be the apex court. The Act
for the first time introduced the concept of High Courts as the court of second
appeal. There were three High Courts throughout the country in that time.8

Two years later, Administration of Justice (Miscellaneous Management), Act,

1962 was introduced to replace the Administration of Justice Act, 1960. This Act
abolished the concept of High Courts providing only three tiers of court hierarchy
in Nepali judicial system. The first amendment of this Act brought some changes
under which trial courts were named as District Court and Court of Appeal (former
District Courts) were named as Zonal Courts established in each zonal area. Again
in 1972, major changes took place in judicial hierarchy. The Administration of
Justice (Reforms) Act, 1975 was introduced four tiers in judicial hierarchy.9 The
District Courts were established in each district as a court of first instance. The
Zonal Courts were established as a court of first appeal and the decision of this
court was made final in petty cases. The Regional Courts were also court of appeal
for serious cases. The appeal was filed in this court directly against the decision of
the District Court in case of serious offences. The Supreme Court was retained as
the apex court of Nepal.

After the restoration of democratic system of government, the Constitution of

Kingdom of Nepal was promulgated in 1990. This Constitution had made
commitment through its preamble to protect fundamental rights of the citizen as
well as ensuring independence of judiciary. The Constitution had for the first time
provided constitutional recognition of three tiers of court hierarchy. Before this
constitution, the hierarchy of the courts had been provided by the statutory
provision. This constitution abolished the concept of the Regional Courts and
introduced Appellate Courts as a first court of appeal for all cases. The District
Courts were taken as the court of first instance. The Supreme Court was retained
as the apex court of the country. Besides this, it had permitted to establish special
types of courts or tribunals by law for the purpose of hearing special types of
cases.10 This Constitution entrusted power to the courts and judicial institutions
power relating to justice in accordance with the provision of this Constitution, the

7
Bishal Khanal, Regeneration of Nepali Law, Bhrikuti Academy Publication, Kathmandu, (2001),
p. 44.
8
Supra note 7, p. 47.
9
Ibid, p. 48.
10
Article 85(1), (2), the Constitution of Kingdom of Nepal, 1990.
68 NJA Law Journal 2014

laws and the recognized principles of justice.11 This Constitution for the first time
gave mandate to the Apex Court to entertain public interest litigation12 to impart
full justice to the poor and disadvantage people aiming to ensure socio-economic
justice. Similarly, power of judicial review13 was vested to the Supreme Court
either on the ground that legislative enactment was inconsistence with the
Constitution or unreasonable restriction was imposed on the enjoyment of the
fundamental rights conferred by this Constitution by using extra ordinary
jurisdiction.

After the popular people movement in 2006, the Interim Constitution of Nepal
has been promulgated introducing the concept of federal system of governance.
This Constitution declared Nepal as Republican democratic country. But the
judicial system has been left as same as the previous the Constitution of Kingdom
of Nepal had envisioned. The hierarchy of the court system, power and function of
the court has been kept the same. This Constitution has introduced distinct
provision as to appointment of the judges of apex court incorporating legislative
hearing system as practiced in American legal system.

Four Revenue Tribunals, one Administrative Court, one Labor Court, one Debt
Recovery tribunal and one Debt recovery Appeal Tribunal and one special court are
functioning under the respective laws. These institutions are under the judicial
control of the Supreme Court.

3. Judicial Administration
As has already been mentioned that the Constitution has envisioned three tiers of
court hierarchy i.e. District Courts, Appellate Courts and Supreme Court at the
top, the power and function of the courts are regulated by the Administration of
Justice Act, 1991. Besides this, the Supreme Court Act and Rules of the concerned
courts provide legal guidelines for the functioning of the courts. The power and
functions of the courts are as follow:

3.1 Supreme Court

The Supreme Court of Nepal is the highest court in Nepal. It has ultimate appellate
jurisdiction over all Appellate and District court. The court consists of fourteen
Judges and one Chief Justice. The Registrar is authorized to work as an
administrative in charge of the Supreme Court. She/he is supposed to work
according to general guidance of the Chief Justice of Nepal. All the administrative
staff use the power delegated by the Registrar.14

11
Article 84, the Constitution of Kingdom of Nepal, 1990.
12
Article 88(2), the Constitution of Kingdom of Nepal, 1990.
13
Article 88(1), the Constitution of Kingdom of Nepal, 1990.
14
Section 8, The Supreme Court Act, 1991.
Nepali Legal and Judicial System: An… 69

The Supreme Court has both judicial and extra judicial powers. The judicial powers
include the power of hearing the writ petitions, the power of hearing appeal, the
power of reviewing its own judgments, the power to revise the judgments
delivered by the Court of Appeal and the power to try certain cases (as specified by
law). The Supreme Court also has power of making rules, administration of all the
Court of Appeal and all the District Courts, formulating policies and programs
regarding judicial administration, managerial reforms in various courts, the
publication and dissemination of the Supreme Court decisions.15

3.1.1 Judicial Powers

The Supreme Court’s judicial powers are as follows:

(a) Power of Hearing Writ Petitions

The Supreme Court is the guardian of the Constitution. Basically, it 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 writ jurisdiction of the Supreme Court. The writ
jurisdiction is commonly known as extraordinary jurisdiction of the Court.

Article 107 of the 2007 Constitution has empowered the Supreme Court to
issue writs (applicable to the respective issues) such as the writs of Habeas
Corpus, Mandamus, Certiorari, Quo-warranto and Prohibition. The writs
are issued particularly in the following conditions:

 If any illegal restriction is made against the fundamental rights of the

people,
 If any legal remedy is not available under any law or the remedy
available under the law is inadequate or ineffective, and
 If any issue relating to public rights or interest requires constitutional
or legal resolution.
(b) Power to decide constitutionality of the law
Article 107(1) of the constitution confers power upon the Supreme Court to
declare void either ab initio or from the date of its decision any statutory
provision on the ground of inconsistency with the Constitution or
unreasonable restriction on the enjoyments of the fundamental rights of
the citizen

(c) Power of Hearing Appeal

Article 107 (3) of the Constitution has given the power to hear appeals (as
specified by the law) against the final decisions of the Court of Appeal.

15
Ibid, Section 11.
70 NJA Law Journal 2014

According to section 9 of the Administration of Justice Act, 1991 the

following cases fall under the appellate jurisdiction of the Supreme Court.

 Cases decided by the Court of Appeal under their original jurisdiction,

 Cases in which more than 10 years of imprisonment was imposed by a
subordinate court, and
 Cases in which reversal of decisions of the original Court, body or
authority has been made by the Court of Appeal on appeal against such
decisions where in this decision punishment is imposed from 3 years
imprisonment or up to than 3 years, fine is imposed from 25 thousand
rupees or up to than 25 thousands, the claim amount if more that
50,000 rupees or amount is not mentioned in the claim.
(d) Power to Review its Own Judgments
Article 107 (4) of the Constitution has given the power to review its own
judgments as specified by the law. According to section 11 of the
Administration of Justice Act, 1991 judgments delivered by the Supreme
Court may be reviewed on any of the following grounds.

If any new evidence which could make substantial difference to the decision
is found after the delivery of judgment.

If the decision is found contrary to the precedent or legal principle

established by the Supreme Court.

(e) Power to Revise the Decisions of the Court of Appeal

Under section 12 of the Administration of Justice Act, 1991 the Supreme
Court has power to revise the final decisions (which are non appealable) of
the Court of Appeal on the following grounds.

 In case there is a serious error in the interpretation of any provision of

the Constitution or any other law,
 In case the decision is made contrary to the precedents or it has been
misinterpreted,
 If public (right of) property was affected due to misinterpretation of
evidence (in the process of formulating decision) and,
 If substantive difference in the judgment is deemed to have occurred due
to the absence of proper legal representation, in a case where a party is a
minor or woman or old or disabled or mentally incapacitated person.
Nepali Legal and Judicial System: An… 71

(f) Power to try Certain Cases

In accordance with Article 107 (3) of the Constitution and section 7 of the
Supreme Court Act, the Supreme Court can try certain cases, exceptionally.
This power is limited to hear the cases relating to contempt of the Supreme
Court and its subordinate courts. Article 102(3) and section 7(1) of the
Supreme Court Act 1991 provides that the Supreme Court have an
authority to penalize wrongdoers with an amount of up to NRs. 10,000 or
imprisonment of maximum period of one year or both if the court finds an
accused is in contempt.

(g) Benches
The judicial power of the Supreme Court is used through the composition of
the various types of Benches. They are called as Single Bench, Division
Bench, Full Bench and Special Bench. Jurisdictions of the different benches
are as follows.

(h) Special Bench

The Special Bench is composed of three or more justices.

(i) Full Bench

The Full Bench is composed of three or more judges. The jurisdiction of the
full bench is to render the final decision upon the cases which does not have
unanimity in the decision of the division bench or the cases which are
referred to the full bench because of presence of serious issue of
interpretation of law or legal principles by division bench or by the Chief
Justice. The chief justice may refer any cases to the full bench if he thinks
the case is fit to be heard by the full bench.

(j) Division Bench

The Bench composed by two justices is called division bench. Most of the
cases run through this bench. The jurisdiction of this bench is to hear the
appeal filed after the decision of the Court of Appeal, to hear the writ
petition registered under the Article 107(2) of the Constitution, to make
review of its own judgments and to make revision of the decision of the
court of Appeal as specified by the law.

(k) Single Bench

Single Bench is formed of a single judge. Prima facie hearing of the writ
petition, petition filed against the interim and interlocutory order of the
inferior court, petition against the order of the Registrar concerning
procedure of the cases and any other application which does not falls under
the jurisdiction of the special, full or division bench falls under the
jurisdiction of the single bench.
72 NJA Law Journal 2014

3.1.2 Extra Judicial Powers

The extra judicial powers of the Supreme Court are as follows:

(a) Power of Making Rules

The Supreme Court has power to make rules on the procedural, managerial
and administrative functions of the Supreme Court, the Court of Appeal
and the District Courts. Section 11 of the Supreme Court Act, 1991 has
authorized the Supreme Court to make rules relating to the Supreme Court,
while section 31 of the Administration of Justice Act has empowered it to
make rules relating to the Court of Appeal and the District Courts. Under
the said statutory authority the Supreme Court has issued the Supreme
Court Rules and Court of Appeal Rules in 1991 and the District Court Rules
in 1995. Rule making power is exercised by the Full Court of the Supreme
Court.

(b) Power to Formulate Judicial Policies

Full Court is the principal policy making body of the Nepali judiciary which
consist of all the judges of the Supreme Court. On many occasions the
Supreme Court has formulated policies and developed plans and
programmes towards judicial reforms and court management system.
Besides, the Chief Justice and the Registrar also have a key role in
formulating judicial policies.

(c) The Full Court

The Full Court is commonly known as the meeting of all the judges present
including the Chief Justice. It is a high level policy making body of the
judiciary. The Full Court is basically responsible for the formulation of
policies relating judicial administration. Policy decisions formulated by the
Full Court are basically carried out by the Registrar (ex-officio secretary of
the Full Court) of the Supreme Court. Major functions of the Full Court are
as follows:

 To recommend new legislation relating to the administration of justice

and any amendment or change required in such law,
 To consider the policy issues relating to administration of justice and
court management,
 To approve the annual report of the Supreme Court,
 To award the title of Senior Advocate, and
 To consider on matters referred to the Full Court either by the Chief
Justice or any of the Justices.
Nepali Legal and Judicial System: An… 73

(d) Other Committees of the Supreme Court

The Supreme Court has other committees which are constituted by the
Supreme Court Rules, 1991. Likewise, the Chief Justice poses power to
constitute other appropriate committee. Main objective of these
committees is to make policy on court management matter and advice to
the Chief Justice.

(e) Archive Centre

The Archive Centre has been established under the supervision of the
Registrar in the Supreme Court so as to develop information network in all
16
level of judiciary.

3.2 Court of Appeal

There are sixteen Courts of Appeal throughout the country. The number of the
court can be increased by the chief justice of the Supreme Court on the
recommendation of Judicial Council and Council of Ministers. The Court of Appeal
is headed by the Chief Judge. Additional judges can be appointed as per the
necessity of the case load.

The Courts of Appeal are empowered to hear appeals, writ petitions and to try
certain cases under their respective jurisdiction. The Administration of justice Act,
1991 has empowered the Court of Appeal to hear appeal against the decision
rendered by the District Courts and various quasi judicial bodies under their
territorial jurisdiction. Similarly, this court has also been empowered with issuing
the writs petition of habeas corpus, mandamus, prohibition, quo-warranto,
certiorari and injunction in the cases of violation of rights conferred by the Civil
Rights Act, 1955.

The Administration of Justice Act, 1991 has also empowered to the Courts of Appeal
to try certain cases as specified by law. This court shall try the cases as transferred
by the Supreme Court from among the cases filed in the District Courts taking in to
account to the complexity of the issues or the Supreme Court deems necessity to
17
provide speedy justice in prolonged disputes. Recently, commercial bench has been
formed to hear cases related to commerce and banking offences.

In Court of Appeal, the Registrar is responsible for the administration of the court.
The overall administration is conducted with the help of subordinate court staffs.
She/he has to work under the guidance of chief judge of the Court of Appeal.
She/he is also responsible for the implementation of the decisions of the full court
which is comprised of all judges including chief judge. Single bench and division
bench are constituted to hear appeal. Full hearing of the case is conducted in the

16
Rule 105d of the Supreme Court Rules, 1991.
17
Section 8(3), the Administration of Justice Act, 1991.
74 NJA Law Journal 2014

division bench. The Archive Section has been established under the supervision of
the Registrar so as to connect the information to the central archive section
established in the Supreme Court.

3.3 District Court

The District Court is the court of first instance. There are 75 District Court
throughout the country. Basically, this court is located at the head quarter of the
each district. This court hears civil and criminal cases within its territorial
jurisdiction. The jurisdiction of the court is provided by the Administration of
Justice Act, 1991. As per the case load, more than one judge could be deputed in
the court. At least, single judge presides in the District Court. Each judge has been
assigned the case from the beginning aiming at to provide quality and speedy
justice. In some district court, criminal and civil cases are separately heard.

The recent amendment of the Administration of Justice Act, 1991 provides writ
jurisdiction to this court. It has power to hear habeas corpus and injunction
against the abuse of power of state authority within its territorial jurisdiction.

The Registrar has to look into the management of the Court under the general
guidance of the District Judge. The Registrar is assisted by the officials
representing various sections of the Court. She/he is also responsible to receive
the petitions and litigation and complete the procedural requirements as specified
by the law. The Archive Section has been established under the supervision of the
District Court Registrar so as to connect the information to the central archive
18
section established in the Supreme Court.

4. Trial Procedure
There is different trial procedure in civil and criminal cases. In civil cases, the case
is filed by the plaintiff himself or herself in the court. After filing the case, the
court issued summons to the defendant allowing making contention about the
claim. Both parties should engage in the court procedure from collecting the
evidence, producing them before the court to execution of the decision. The party
could represent with his/her legal counsel in the court procedure. If the party
could not afford the legal representative during the trial, the court can issue order
the court appointed lawyer for providing legal representation. In each District
Court, the service of court appointed lawyer is available. It is the constitutional
commitment to provide free legal aid to the poor people.

During the trial, the plaintiff can withdraw his/ her claim. This privilege is given to
the plaintiff until the decision is made. In between the trial, both parties of the
case can come to the compromise in their disputed issues. There is decision
execution section in each District Court presided by the Tahasildar (execution
officer). The winner party of the case should initiate execution process after the

18
Rule 6(5A) of the District Court Rules, 1994.
Nepali Legal and Judicial System: An… 75

final decision is made. The disputed parties could also come to compromise in this
stage. Some civil cases which fall under the schedule 2 of the Government Cases
Act, 1992 have been initiated proceedings by the Government Attorney. The
District Government Attorney conducts inquiry and collects evidence with the
help of concerned authority.

Because of having been adopted adversarial system in civil case and accusatorial
system in criminal case, fair trial and due process of law is maintained in the court
process. Basically, in civil case, the plaintiff must adduce documentary evidence to
prove his/her claims in court of law. The court could deliver its judgment without
trial if the defendant accepts the claims or fails to timely contest the claims or
remain silent regarding it as an admission of the alleged fact. The same system is
applied even in criminal case if such situation prevails.

In criminal case, the prosecution must prove the case beyond reasonable doubt. In
very limited cases, the burden of proof is placed upon the defendant such as in
case of 'drug trafficking',' human trafficking' and 'corruption'. Despite this
provision, the Supreme Court has many instances ruled that burden of proof
regarding establishing the alleged offence is first and foremost function of the
prosecution. It has been settled rule of the Nepali criminal justice system.

With regards to criminal case, some petty criminal case should be initiated by the
aggrieved party himself/herself. The process of trial of such case is same as
conducted in civil case. But the serious offences which fall under the schedule 1 of
the Government Cases Act, 1992 the proceedings have to be initiated by the State
involving police as investigation officer and Government Attorney as prosecution.
The Interim Constitution of Nepal 2007 has incorporated 'right regarding justice'
as fundamental rights. Under this right, the basic rights of the accused have been
guaranteed as follows;

 Right to consult legal practitioner of his/her choice at the time arrest,

 Right to be produced before judicial authority within the period of twenty
four hour after the arrest made,
 Right against ex post facto law,
 Right to be presumed innocent,
 Right against double jeopardy,
 Right against self-incrimination,
 Right to be informed of the proceedings of the trial,
 Right to fair trial by the competent court,
 Right to free legal aid, and
 Right against torture.
76 NJA Law Journal 2014

The trial phase of criminal cases could be referred as follow;

4.1 Pre-trial Process

Usually the crime investigation begins with the filling of the First Information
Report (FIR) by the victim/s or near relatives on detection of the crime. Once the
Police accept the FIR the search for the arrest of suspect and collection of
evidences follows. In the meanwhile, as per the requirement of the Government
Cases Act, 1992 a preliminary report is filed to the competent District
Government Attorney (DGA) who in turn, on his discretion may issue binding
instruction to the Investigating Police Officer. The statement of the suspect who
is in Police custody by the order of the Court is to be recorded by the Investigating
Police Officer in DGA's presence in latter's Office. The rationale behind this seems
to be to protect the suspect from mental/physical torture of the Police, if any. On
completion of the investigation the Investigating Police Officer prepares a Case-
file and submits the same to the District Government Attorney with his opinion as
to prosecute or dropping the case. The District Government Attorney, on
examination of the case-file, at his discretion, may take any of the following
decision:

1. Refer back the file to the Investigating Officer for further investigation
and release the suspect if under arrest,
2. Decide to drop the case altogether on account of lack of evidences and
discharge the suspect,
3. Decide to charge all or some and discharge other of the suspects.

Where the case-file has been referred back for further investigation the
investigation process is supposed to continue and in due course, the same has to
be submitted to the District Government Attorney for his decision. A decision for
partial prosecution the decision of the DGA becomes final. No further
investigation and subsequent prosecution against the discharged suspect is
possible. However, where the DGA has decided to drop the case altogether and
consequently the suspect is discharged, this decision of DGA has to be referred to
the Appellate Government Attorney (AGA) for confirmation of the decision. AGA
may either reverse the DGA's decision and order back for prosecution or confirm
the original decision. In case the AGA agrees with DGA's decision, he has to
forward the Case-file to AG office for the final decision of the Attorney General. In
exercise of the power conferred by the Article 135 (2) of the constitution, the
Attorney General may confirm or reverse decision made by his subordinates. If AG
decides to reverse the decision of his subordinates opting for prosecution then the
case-file goes back to DGA who then frame the charge and file charge- sheet before
the District Court for trial. Once a charge- sheet is filed in the Court for initiating
trial the DGA has to act as an Attorney for the state. However, so long as he has
not decided to prosecute a case, his role is limited to that of an impartial
Committing Authority or the Prosecutor.
Nepali Legal and Judicial System: An… 77

4.2 Trial Process

The Trial Process begins with the filing of a Charge sheet before the competent
District Court for trial. On the day of the filing of the charge sheet itself, the
accused if under arrest, must be produced before the presiding judge for recording
of the statement. The accused is at liberty to either admit or deny the charge/s
made against him by the Prosecution. At this stage, the accused person has right to
engage a lawyer of his choice. Immediately after the recording of the statement of
the accused, the Presiding Judge is required to pass an order for granting or
rejecting the bail. If the bail is granted without demand for pecuniary security the
accused is set free on personal bond. In case the bail is rejected or a large sum of
money as security has been demanded and which the accused is not in a position
to deposit the accused is sent to judicial custody as an under-trial prisoner.
However, the accused has right to move to the Appeal Court for setting aside the
original order. Meanwhile, the processes of production and examination of
witnesses and adducing of any other evidences as listed by both the prosecution
and defense side would follow. So far, no system of separate judge or Bench for
hearing the Criminal or Civil Cases has been introduced in Nepal. This is true of all
tiers of Courts.

Once the examination of witness and collection of evidence by trial Court is

complete, the case becomes mature for final decision. The case of an under-trial
prisoner is given priority for disposal. Usually hearing both the sides, the trial
judge gives the verdict either convicting or acquitting the accused immediately. If
acquitted, the accused been ordered to be set free immediately. But if the
judgment is in favor of the prosecution and the accused is in custody, because of
conviction, he has to remain under imprisonment.. However, the right to appeal is
available to the convict. He also may approach the Appeal Court for setting him
free on bail pending his appeal. On acquittal of the accused, the prosecution has
right to file appeal against the judgment of the Trial Court.

In cases where woman and children are involved either as defendant or prosecutix,
confidentiality is to be maintained during pre-trial and trial process. It is strictly
prohibited except as permitted by the court to disseminate any sort of information
which may cause them insecurity. In camera hearing process is held in such cases.
Nepali judiciary is very serious to protect rights of the accused as well as victims. The
newly enacted the Organized Crime Ordinance, 2012 has introduced video
conferencing procedure during trial if the court deems necessary for the sake of justice.

5. Judges' Qualification
5.1 District Court Judge
The District Courts are the court of first instance. 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 experience as a Class II officer of the Nepali Judicial
78 NJA Law Journal 2014

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.

5.2 Appellate Court Judge

The Chief Judge or the judges of the Court of Appeal are appointed from among
the individuals either who have worked as a District Judge or as an officer of
Nepali Judicial Service in an equivalent rank for a minimum of seven years, or any
Senior Advocate or Advocate with minimum practicing experience of ten years, or
any legal researcher or law teacher or person engaged in any field of law and justice
for a minimum of ten years.

The Judges of the Court of Appeal hold their office till the age of sixty three. They
may resign from their office at any time by submitting resignation to the Chief
Justice or the Chief Justice under the recommendation of the Judicial Council may
dismiss them on the ground of incompetence, or bad moral conduct, or
dishonesty.

5.3 Supreme Court Justice

The Chief Justice is appointed by the President on the recommendation of the
Constitutional Council. She/he is appointed from among the justices having
minimum three years of experience of the Supreme Court. Justices of the Supreme
Court are appointed by Chief Justice of Nepal on the recommendation of the
Judicial Council.

Justices of the Supreme Court are appointed from among the judges who have
worked for seven years as the judges of the Court of Appeal, or Gazetted first class
officer of Judicial Service for minimum 12 years or have worked as Senior Advocate
or Advocate with minimum practicing experience of fifteen years, or a distinguished
jurist who has worked for minimum 15 years in the judicial or legal field.

Justices of the Supreme Court hold their office till the age of sixty-five. They may
be removed through an impeachment motion passed by a two third majority of the
legislative parliament on the ground of incompetence or bad moral conduct or
dishonesty. The Chief Justice may resign from office at any time by submitting
resignation to the Council of Ministers and other justices may resign from their
office by submitting their resignation to the Chief Justice.

6. Judicial Training System

National Judicial Academy (NJA) is an independent, autonomous and statutory
body established in 2004. It was established with an aim to promote equitable, just
Nepali Legal and Judicial System: An… 79

and efficient justice system for Nepal through training, professional development,
research and publication programs which address the respective needs of judges,
judicial officers, government attorneys, government legal officers, private law
practitioners, quasi judicial officers and others who are directly involved in the
administration of justice.

NJA has been conducting a number of programs to provide theoretical and

practical knowledge by interacting on emerging concepts in the field of law and
justice with the concerned subject experts. It designs and implements capacity
building programs for the judges, judicial officers, government attorneys,
government legal officers, private law practitioners, quasi judicial officers and
others who are directly involved in the administration of justice. For the positive
change in the outlook of the participants, it also conducts various national and
international visits during the period of training. Recently it has conducted
training for enhancing Judicial Capacity Development Program ( JCDP) to the
Chief District Officers presiding in the Quasi Judicial body who have been
authorized to hear criminal cases. This program is conducted aiming to train them
at ensuring fair trial in quasi judicial proceedings.

7. How the judiciary should fight corruption

Corruption has been major problem of Nepali society. Despite making legal
arrangement as per requirement of time, it is still happening in the society pervasively.
One can see policy as well as petty corruption in Nepali society. The Interim
Constitution of Nepal, 2007 creates independent and autonomous constitutional body
named 'Commission for Investigation of Abuse of Authority’ (CIAA) to investigate and
probe improper conduct and corruption of public officials. It has authority to
investigate all officials holding public positions, from the Prime Minister to low-ranked
public servants. However, it has no jurisdiction over any official in relation to whom
the constitution itself separately provides for such action and any official to be
prosecuted under the Army Act. Those officials, however, are not immune to
investigation after their removal from their respective posts. A special court has now
been established to look into such cases. The Constitution has assigned punitive,
preventive as well as recommendatory role to the CIAA. The CIAA can file charge sheet
in the Special Court if corruption is established against the public officials. Similarly, it
has authority to recommend the concerned authority to initiate disciplinary action
against public officials if improper conduct is established. The Special Court as well as
Supreme Court has been playing very crucial role to control and combat corruption.
There is separate Special Court established to try corruption cases under the Special
Court Act, 2002.

With regards to judicial improper conduct and corruption, appropriate mechanism

has been developed within court structure of all level of court hierarchy. In
Supreme Court Registrar is made responsible to supervise improper conduct of the
court staffs during providing judicial services. Ultimate responsibility is endowed
with chief justice. Apart from this, a senior officer has been deputed as a nodal
80 NJA Law Journal 2014

officer to handle public grievances in course of service delivery. If court staffs are
found guilty of improper conduct and corruption, a disciplinary action against
such person is initiated by the Registrar. Such mechanism is provided even in
Court of Appeal and District Court respectively.19

The Interim Constitution of Nepal 2007 has constituted Judicial Council20 to

conduct inquiry against the judge of Court of Appeal and District Court if any
complaint or report seeking action has been filed or it has been informed from any
source. The Council could either form inquiry committee or give authority to
chairperson or member or judge of Appellate court to conduct initial inquiry as per
the seriousness of the complain.21 The Inquiry Committee has authority to
investigate and to collect evidences. After completion of work, the Committee
gives report of such inquiry including opinion to the Council.22 In case of a need to
file a case against any judge on the charge of any accusation of corruption under
the current law, the case shall be initiated by submitting a complaint or report to
the concerned Court of Appeal by the Secretary or by any other officer as deputed
by the Council.23 Before filing the charge-sheet against such judge, an opportunity
to defend himself/herself is provided to the judges. With regards to chief justice
and justices of the Supreme Court, the motion of impeachment is passed by the
Legislative Parliament.24 The regulation procedure of impeachment has been
mentioned in the Impeachment (Regulation of Procedure) Act, 2002.

8. Independence and Autonomy of the Judiciary

The concept of separation of power was introduced after the restoration of
democracy in 1951 by incorporating this concept in the Interim Government Act,
1951. Despite, the judiciary was separated from other organs of the state,
independence and autonomy of the judiciary was not envisioned in reality. Until
1990, this concept was put in the constitutional framework as just merely
glittering. In between this period, the judiciary itself made efforts to protect and
promote judicial independency and autonomy very significantly in course of
dispensing justice.

The Pradhan Nyayalaya tried its best to establish an independent system of justice
and rule of law in Nepal by using whatever legal tools available under the dynamic
leadership of the then Chief Justice Hari Prasad Pradhan. A few leading cases of

19
Registrar represents as a Chief of Administration in the Court. He/she can take action against
subordinate staffs pursuant to permission of Public Service Act, 2049 BS.
20
Article 113, the Interim Constitution of Nepal, 2007.
21
Section 5, the Judicial Council Act, 1991.
22
Section 7, the Judicial Council Act, 1991.
23
Section 9a, the Judicial Council Act, 1991.
24
Article 105(c), the Interim Constitution of Nepal, 2007.
Nepali Legal and Judicial System: An… 81

this period such as Bisheswar Prasad Koirala v the Magistrate of Kathmandu25 in

which the court asserted its power to have judicial review of law, Bharat Bahadur
Pandey26 in which it defined the constitutional limits of the king during the
interim period. Ved Krishna Shrestha27 in which it asserted its role as guardian of
the constitution are remembered as landmark cases of the Pradhan Nyayalaya
period. After the establishment of the Supreme Court, it has time and again ruled
about its independency and autonomy when the conflict with other organs rose. In
Sarbagya Ratna Tuladhar28, the Supreme Court asserted its role as a final
interpreter of the laws and Constitution.

After the commencement of the Constitution of Kingdom of Nepal, 1990, this

Constitution had explicitly guaranteed independence and autonomy of the judiciary by
providing preambular commitment in this regard. This Constitution had made
provisions related to hierarchy of the court, appointment of the judges on the
recommendation of Judicial Council so as to make separate appointment system from
executive branch of the State etc . The Interim Constitution of Nepal 2007 has
retained same provision to ensure independence and autonomy of the judiciary. Beside
this, it has introduced parliamentary hearing system in the appointment of justices of
the Supreme Court which has been a hot debate amongst the legal scholar because it is
said that this system would undermine very foundation of judicial independency in
days to come. But this has not happened in judicial function to date.

Today's judiciary is intensively committed to establishing a system of justice which

is independent, competent, inexpensive, speedy and accessible. Even in such
transitional period, the judiciary has left no stone unturned to ensure
independency and autonomy. Moreover, the running second Strategy Plan of the
judiciary has defined independence and autonomy as one of the core values of the
judiciary. The Strategy Plan has been able to boost functional autonomy as well.

9. Conclusion
Though Nepali tradition developed as distinct and indigenous character in the past
legal history, slowly and steadily with the span of time and advancement of society, it
changed its indigenous character adopting modern democratic norms and values. It
happened Nepali legal tradition when Nepal came close to the outer world after the
democratic movement succeeded in 1951. Since then, Nepali legal system developed as
mixed model of adversarial and inquisitional till before commencement of the 1990
Constitution. Post 1990 Constitution, Nepali legal system became adversarial in
nature except some exceptions. Till the date, adversarial system continues as a basic
foundation of Nepali legal tradition.

25
Bisheswar Prasad Koirala v the Magistrate of Kathandu, Nepal Law Reporter, 1959, vol.2, No. 4, p.
123- Quoted from Supra note 5, p. 17.
26
Ibid.
27
Ibid.
28
Ibid, p. 22.