PART 11 - Judiciary

By Nepalko on April 09, 2017

  1. (126) Courts to exercise powers related to justice:
    1. Powers relating to justice in Nepal shall be exercised by courts and other judicial institutions in accordance with the provisions of this Constitution, other laws and recognized principles of justice.
    2. All must adhere to the order or verdict given by the court in relation to the court cases.
  2. (127) Courts: 
    1. There shall be the following courts in Nepal:
      1. Supreme Court,
      2. High Court, and
      3. District Court
    2. In addition to the courts referred to in Clause (1), other institutions may be established according to the need to adopt other means of alternatives of dispute resolution or judicial bodies to adjudicate cases at the local level according to the law.
  3. (128) Supreme Court 
    1. There shall be a Supreme Court in Nepal.
    2. The Supreme Court shall be the Court of Record. Unless otherwise provided in this Constitution, all other courts and judicial institutions shall be under the Supreme Court. The Supreme Court shall have the final power to interpret the Constitution and law.
    3. 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 or management.
    4. The interpretation of constitution and law or the legal principles propounded by the Supreme Court in relation to court cases must be followed by all. The Supreme Court can initiate a contempt of court case and punish according to the law against anyone obstructing its or its subordinate court‟s act of judicial execution or not abiding by its order or verdict.
  4. (129) Appointment and qualifications of Chief Justice and Justices of the Supreme Court:
    1. In addition to the Chief Justice of Nepal, there shall be 14 justices in the maximum in the Supreme Court. In case the number of the justices is inadequate because of the increase of number of cases at the Supreme Court, a maximum of ten temporary justices may be appointed for a certain period.
    2. President shall appoint Chief Just at the recommendation of Constitutional Council and justices of the supreme court at the recommendation of Judicial Council.
    3. 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.
    4. The tenure of office of the Chief Justice shall be six years.
    5. Any Nepali citizen who holds a bachelor degree of law and has worked as Chief Judge or Judge of the High Court for seven years or has practiced law for at least fifteen years as a law graduate senior advocate or advocate or has worked for 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.

      Explanation: The period worked as a judge of the appellate court before the commencement of this Constitution shall be regarded as the period to have worked in capacity of the High Court Judge for the purpose of this Clause.

    6. If the office of the Chief Justice becomes vacant, or the Chief Justice is unable to carry out the duties of her/his office due to any reason or she/he cannot be present in office due to a leave of absence, or her/his being outside of Nepal, the senior-most Judge of the Supreme Court shall act as the Acting Chief Justice.
  5. (130) Conditions of service and benefits of the Chief Justice and Justices: 
    1. The Chief Justice, and judges of the Supreme Court are entitled to receive a pension as provided for in the law if they resign, or get compulsory retirement or die after having served for at least five years.
    2. Except as otherwise provided in this Constitution, the remuneration and other conditions of service of the Chief Justice and Judge of the Supreme Court shall be according to the law.
    3. Notwithstanding anything contained in Clauses (1) and (2), any Chief Justice or Judge of the Supreme Court who has been removed from office through impeachment or has been punished by the court on criminal charges of moral degradation shall not be entitled to any gratuities and pensions.
    4. The remuneration and other conditions of service of the Chief Justice and other judges of the Supreme Court shall not be altered to their disadvantage.

      However, this provision shall not apply in case of a declaration of a state of emergency due to severe economic breakdown.

  6. (131) Vacation of Office of Chief Justice or Justices of the Supreme Court: The Chief Justice or Judge of the Supreme Court will cease to hold office in the following situations:
    1. If the Chief Justice submits her/his written resignation to the President and a Judge submits her/his resignation to the Chief Justice,
    2. If she/he attains the age of six-five years,
    3. If an impeachment resolution is passed according to Article 101,
    4. If the President relieves her/him of the post on the recommendation of the Constitutional Council in case of the Chief Justice and on the recommendation of the Judicial Council in case of the Judge for not being able to perform duties in service due to physical or mental illness,
    5. If convicted by the court on criminal charges of moral degradation, or
    6. If she/he dies.
  7. (132) Chief Justice and Justices not to be engaged in any other assignment: 
    1. The Chief Justice or Judge of the Supreme Court shall not be engaged in or deputed to any other assignment except that of a Judge.

      Provided that the Government of Nepal may, in consultation with the Judicial Council, depute a Supreme Court Judge to work concerning judicial inquiry or to legal or judicial investigation or research for a specified period.

    2. Any person who has once held the office of Chief Justice or Judge of the Supreme Court shall not be eligible for appointment in any government post, except otherwise mentioned in this Constitution.
  8. (133) Jurisdiction of the Supreme Court: 
    1. Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, and extra-ordinary power shall rest with the Supreme Court to declare that law void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with the Constitution.
    2. The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such rights or settle the dispute.
    3. For this purpose, the Supreme Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.

      Provided that, except on the ground of absence of jurisdiction, the Supreme Court shall not, under this Clause, interfere with the internal affairs of the Federal Parliament and, the proceedings and decisions of the Federal Parliament concerning violation of its privileges and any penalties imposed thereof.

    4. The Supreme Court shall have jurisdiction to hear original and appellate cases, to review its own judgments or interim order, to examine decision referred for confirmation, review cases or hear petitions. Such review shall be done by judge other than the one involved in original verdict.
    5. Notwithstanding the clause (4), after the completion of 10 years of the commencement of this constitution, Supreme Court shall have the right to initial hearing and passing judgment on issues under Article 137 (3). 
    6. The Supreme Court shall hear appeal of cases that have been initiated and executed by the High Court, a subject of public interest litigation including a question related to the interpretation of the constitution and law or a case referred by the High Court along with its opinion that it would be appropriate for the Supreme Court to decide on it.
    7. Other rights and procedural of the Supreme Court shall be as per the Federal Law
  9. (134) Transfer of cases: 
    1. If a case including the same question in substantial terms are under consideration of the Supreme Court and High Courts and if the Supreme Court considers that the question is of public importance or if it is seen so in the petition of the Attorney General or the petitioner of the case, the Supreme Court shall have the right to invite the case and decide it together.
    2. If special circumstances arise whereby question could be raised on the judicial impartiality over the hearing of a case in any High Court, the Supreme Court may order according to the law by clarifying the reason and basis to transfer the hearing of the case from one High Court to another High Court.
  10. (135) Not to be part of pleading of court cases: The Chief Justice or Judge of the Supreme Court, Judge of the Constitutional Court following their retirement shall not be allowed to plead any cases in any court, or involve in reconciliation or mediation business.
  11. (136) Responsibility of the Chief Justice: The Chief Justice shall have the ultimate responsibility to make the administration of justice effective of the Supreme Court and other courts under its jurisdiction or other judicial institutions.
  12. (137) Constitutional Court 
    1. There shall be a Constitutional Court in Nepal.
    2. The formation of the Constitutional Court shall be as follows:
      1. Chief Justice
      2. Two senior most Justice of the Supreme Court –Member
      3. Two persons to be appointed by the President on the recommendation of the Judicial Council from among those who meet the qualifications of a Supreme Court Justice -Member
    3. The jurisdiction of the Constitutional Court shall be as follows:
      1. To resolve the dispute over the jurisdiction between the Federation and Province, among Provinces, between a Province and local level and among the local levels (of government),
      2. To resolve the dispute concerning the election of the Federal Parliament or Provincial Assembly, and the question of ineligibility of the member of the Federal Parliament or the member of the Provincial Assembly.
    4. The decision of the Constitutional Court shall be final decision.
    5. The Constitutional Court shall continue to exist for ten years from the commencement of this Constitution. Following the period, the cases and records under consideration at the Constitutional Court shall be transferred to the Supreme Court.
    6. The terms of service and benefits of the members to be appointed according to sub-Clause (c) of Clause (2) shall be similar to a Supreme Court Justice.
    7. Other arrangements of the Constitutional could shall be as prescribed by the law
  13. (138) Annual report: 
    1. Each year, the Supreme Court, the Constitutional Court, Judicial Council and Federal Judicial Service Council shall present its annual report to the President, and the President through the Prime Minister shall submit such reports before the Federal Parliament.
    2. If recommendations from the Federal Parliament are deemed necessary upon discussion on the annual report submitted according to Clause (1), then such recommendations may be given to the concerned institution through the Government of Nepal, Ministry of Law and Justice.
    3. Other provisions relating to the annual report according to Clause (1) will be according to the law.
  14. (139) High Court: 
    1. There shall be a High Court in every province.
    2. The High Court can initiate a contempt of court case and punish according to the law against anyone obstructing its or its subordinate court‟s act of judicial execution or not abiding by its order or verdict.
    3. In addition to the Chief Judge, every High Court shall have judges in the number as provided in the Federal Law.
  15. (140) The appointment and qualifications of the Chief Judge and Judges of the High Court: 
    1. The Chief Justice shall, on the recommendation of the Judicial Council, appoint the Chief Judge and Judges of the High Court.
    2. Any Nepali citizen who has a Bachelor‟s Degree in law and has worked as a District Judge for at least five years or has practiced as a law graduate senior advocate or advocate for at least ten years ; or for at least 10 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.
    3. During appointments of Chief Judge and other Judges of the High Court from among the persons meeting qualifications according to Clause (2), in case of a district judge, the appointment shall be made also on the ground of the proportion of cases decided annually by her/him and the situation of cases endorsed or overturned during final decision in the higher court, and in case of others, on the ground of examination and evaluation according to the law.
    4. If the office of the Chief Judge becomes vacant, or the Chief Judge is unable to carry out the duties of her/his office due to any other reason, or she/he cannot be present in office due to a leave of absence or her/his being outside of the province, the senior-most Judge of the High Court shall act as the Acting Chief Judge.
  16. (141) Conditions of service and benefits of Chief Judge and Judges:
    1. Unless otherwise mentioned in this Constitution, the remuneration and other conditions of service of the Chief Judge and other Judges of the High Court shall be according to the law.
    2. Notwithstanding anything contained in Clause (1), the Chief Judge and Judge of the High Court, who has been removed from office following action by the Judicial Council or following punishment by the court on criminal charges constituting moral degradation, shall not be entitled to gratuity or pension.

      Provided that this provision shall not apply in a condition of the Judicial Council removing her/him from office for being unable to perform duties of office due to reasons of physical or mental illness.

    3. The remuneration and other terms of service of the Chief Judge or Judge of the High Court shall not be altered to their disadvantage.

      Provided that this provision shall not apply in situation of a declaration of state of emergency due to severe economic breakdown.

  17. (142) Vacancy of office of the Chief Judge or Judge : 
    1. The Chief Judge or Judge of the High Court shall cease to hold office in the following circumstances:
      1. If she/he submits written resignation to the Chie Justice,
      2. If she/he attains the age of sixty three years,
      3. If she/he is removed by the Judicial Council for reasons of incompetence, misbehavior, ill-intended activities and serious violation of the code of conduct,
      4. If she/he is removed by the Judicial Council for being unable to discharge the duties of her/his office due to physical or mental illness.
      5. If punished by the court on criminal charges constituting moral degradation, or
      6. If she/he dies.
    2. A Judge who is facing a charge before being removed from office according to Sub-clause (c) of Clause (1) must be given a reasonable opportunity to defend herself/himself. The Judge against whom proceedings have been initiated accordingly shall not perform duties of her/his office until the proceedings have been completed.
    3. The Chief Judge or Judge removed from office may face investigation and prosecution according to the law for offense committed while holding office.
  18. (143) Chief Judge and Judge not be engaged in any other assignment and transfer related provision: 
    1. The Chief Judge and Judge shall not be transferred to or deputed to any assignment except that of a Judge.

      Provided that the Government of Nepal may, in consultation with the Judicial Council, depute a High Court Judge to work concerning judicial inquiry or for a specified period to any legal or judicial investigation or research or to any other work of national concern.

    2. The Chief Justice may transfer a High Court Judge from one High Court to another on the recommendation of the Judicial Council.
  19. (144) Jurisdiction of the High Court: 
    1. Any Nepalese citizen can petition in the High Court to annul any local law or part thereof formulated by Village Assembly or Municipal Assembly as per this constitution, if such law is inconsistent with provincial law formulated by provincial assembly. The High Court shall have the extraordinary right to annul such law from its commencement or from the date of the court order.
    2. The High Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any legal question involved in any dispute of public interest or concern, have the right to issue necessary and appropriate orders in the name of governments, office-bearers, institutions or individuals within its provincial jurisdiction.
    3. For the purpose of Clause (1), the High Court may issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.

      4. Provided that except on the ground of absence of jurisdiction, the High Court shall not, under this Clause, interfere with the internal task and the proceedings and decision of the Provincial Assembly concerning violation of its privileges and any penalties imposed thereof.

    4. The High Court shall have jurisdiction to hear original and appellate cases and to examine decisions referred for confirmation, as provided for in law.
    5. Other powers and working procedures of the High Court shall be according to the federal law.
  20. (145) Transfer of cases: 
    1. If the High Court feels that any case under consideration at courts under its jurisdiction involved a question of provincial law and that the question needs to be resolved in order to decide the case, then the Court may invite such cases from the subordinate courts and give full decision on the case or decide on such questions and send it back to the original court.
    2. If a special circumstance of questions likely to be raised on the judicial impartiality appears, then the High Court may, by clearing the reasons and ground according to the law, order such cases to be transferred and heard from one district court to another district under its jurisdiction.
  21. (146) Allowed to plead: A person who has retired as a High Court Judge can plead in in the Supreme Court and High Courts other than in the high courts and subordinate courts that she/he has served as the Judge.
  22. (147) Responsibility of the Chief Judge : The Chief Judge shall have the ultimate responsibility to make the administration of justice within the jurisdiction of the High Court effective, and for this purpose she/her may, subject to this Constitution and other laws, give necessary instructions to the High Court, other subordinate courts and judicial institutions.
  23. (148) District Court: 
    1. There shall be a district court in every district.
    2. The local level judicial institutions established according to the provincial law shall remain under the District Court. The District Court may inspect, supervise and issue necessary instructions to its subordinate judicial institutions.
  24. (149) Appointment, qualifications and remuneration and other terms of service of the Judges of District Courts: 
    1. The Chief Justice shall, on the recommendation of the Judicial Council appoint the Judges of the District Courts.
    2. The position of vacant district court judge shall be fulfilled as follows:-
      1. Out of the total vacant positions, twenty percent positions 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 seniority, qualifications and evaluation of performance;
      2. Out of the total vacant positions, forty percent positions 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 an open competitive examination;
      3. Out of the remaining positions, forty percent of positions to be fulfilled through an open competitive examination 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 completed Bachelor‟s Degree in law or persons who have practiced law or has either taught law or conducted research thereon or worked in any other field of law and justice for at least eight years;
    3. The Judicial Service Commission shall, after taking written and verbatim practical examinations according to the law from among the persons with qualifications according to Clause (2), recommend to the Judicial Council according to the merit list for appointment as district judge.
    4. The remuneration and other conditions of service of the Judges of District Court shall be according to the law.
    5. The remuneration and other conditions of service of the Judges of the District Court shall not be altered to their disadvantage.

      Provided that this provision shall not apply in a situation of declaration of a state of emergency due to severe economic breakdown.

    6. A Judge of the District Court shall cease to hold office in the following circumstances:
      1. If she/he submits written resignation to the Chief Justice of Supreme Court,
      2. If she/he attains the age of sixty three years,
      3. If she/he is removed by the Judicial Council for reasons of incompetence, misbehavior, ill-intended work or serious violation of the code of conduct,
      4. If removed by the Judicial Council for being unable to discharge the duties of her/his office due to physical or mental illness,
      5. If punished by the court on criminal charges constituting moral degradation, or
      6. If she/he dies.
    7. A Judge of the District Court who is facing a charge before being removed according to Sub-clause (c) of Clause (6) shall be given a reasonable opportunity to defend herself/himself. The Judge against whom proceedings have been initiated accordingly shall not perform the duties of her/his office until the proceedings have been completed.
    8. The Judge thus removed may face investigation and prosecution according to the law on offenses committed while holding office.
  25. (150) Judges of the District Court not to be engaged in any other assignment and provisions related to transfer: 
    1. A District Court Judge shall not be engaged in or deputed to any assignment except that of a Judge.

      Provided that the Government of Nepal may, in consultation with the Judicial Council, assign a District Court Judge to work concerning judicial inquiry or for a specified period to any legal or judicial investigation or research, or to works related to elections.

    2. The Chief Justice may transfer the Judges of the District Court from one court to another on the recommendation of the Judicial Council.
  26. (151) Jurisdiction of the District Court: 
    1. The District Court shall, unless provided otherwise in the law, have jurisdiction to hear original cases and execute all cases within its jurisdiction, hear petitions of habeas corpus, prohibitory order and other petitions according to the law, hear appeal over the decisions taken by the quasi-judicial bodies, hear appeal over the decision of the local level judicial institutions established according to the law of the province and initiate action and punish in contempt of court against those obstructing its or its subordinate courts acts of judicial execution or not abiding by the order or verdict.
    2. The jurisdiction of the district court and other provisions relating to its working procedure shall be as provided for in the law.
  27. (152) Specialized court: 
    1. In addition to the courts referred to in Article 130, the law may establish and constitute other specialized courts, judicial institutions or tribunal, for the purpose of hearing cases of special types and nature.
      1. Provided that no specialized court, judicial institution or tribunal shall be constituted for the purpose of hearing a particular case.
    2. Cases related to criminal offense leading to prison sentence of more than 6 months shall not fall under the jurisdiction of any other institution other than a court or specialized court or military court or judicial body.
  28. (153) Judicial Council: 
    1. There shall be a Judicial Council to make recommendations and give advice in accordance with this Constitution concerning the appointment of, transfer of, disciplinary action against, dismissal of Judges, and other matters relating to judicial administration, which shall consist of the following as its Chairperson and members:-
      1. The Chief Justice - Chairperson
      2. The Federal Minister for Law and Justice - Member
      3. Senior- most Judge of the Supreme Court - Member
      4. A legal expert nominated by the President on the recommendation of the Prime Minister -Member
      5. A senior advocate, or an advocate who has at least twenty years‟ experience to be appointed by the President on the recommendation of the Nepal Bar Association -Member
    2. The term of office of the members referred to in Sub-clauses (d) and (e) of Clause (1) shall be four years and their remuneration and privileges shall be the same as those of a Judge of the Supreme Court.
    3. The members referred to in Sub-clauses (d) and (e) of Clause (1) above, may be removed from office on the same grounds and in the same manner as provided for the removal of a Judge of the Supreme Court.
    4. The Chairperson, inter alia, and members of the Judicial Council may obtain and study the documents and files of a case related to any complaint lodged against a judge, and may furnish information thereon to the Judicial Council.
    5. The Judicial Council may, while carrying out preliminary investigation of a complaint received against a judge, constitute a Committee of Inquiry, if it has determined that a detailed investigation by an expert is required.
    6. Except in case of justices who can be removed from office through the impeachment motion under this constitution, the Judicial Council can investigate and move court cases against other judges accused of corruption or abuse of authority.
    7. The Judicial Council shall, pursuant to this Constitution, maintain an updated record of the persons who meet the qualifications to be appointed to the post of Chief Justice and Judge of the Supreme Court, Judge of the Constitutional Court, Chief Judge and Judge of the High Court.
    8. The other functions, duties and powers of the Judicial Council shall be according to the law.
  29. (154) The Federal Judicial Service Commission: 
    1. The Government of Nepal shall carry out appointments, transfers and promotions to gazetted posts of federal judicial service or take departmental action against any staff holding such post according to the law on the recommendation of the Federal Judicial Service Commission.

      Provided that the Government of Nepal shall make permanent appointments through new recruitments in gazetted post of Federal Judicial Service of a person who is not in Federal Government Service or while making promotions from non-gazetted post of Federal Judicial Service to gazette post of the same service, on the recommendation of the Public Service Commission.

      Explanation: For the purpose of this Article, the Public Service Commission shall conduct the open and internal practical examinations taken during appointments to gazetted post of judicial service.

    2. The Federal Judicial Service Commission shall consists of the following chairperson and members:
      1. Chief Justice of the Supreme Court - Chairperson
      2. Federal Law and Justice Minister - Member
      3. Senior-most Judge of the Supreme Court - Member
      4. Chairperson of the Public Service Commission - Member
      5. The Attorney General - Member
    3. The other functions, duties, and powers, and working procedures of the Federal Judicial Service Commission shall be according to the law.
  30. (155) Provisions related to conditions of service and benefits: The remuneration, benefits and conditions of service of the staffers of the Federal Judicial Services shall be as provided in the Act.
  31. (157) Provisions related to provincial level judicial service commission: The formation of judicial service in the province and the remuneration, benefits and conditions of service of its staffers shall be as provided in the law.

Connect with us

Subscribe with your email to get connected

Copyright © All Rights Reserved. Nepalko 2024, Powered by Web.Nepalko.Net