PART
11
JUDICIARY
84.
Courts to Exercise Powers Related to Justice:
Powers
relating to justice in the Kingdom of Nepal shall be exercised by
courts and other judicial institutions in accordance with the provisions
of this Constitution, the laws and the recognized principles of justice.
85.
Courts of Kingdom of Nepal:
(1) Courts
in the Kingdom of Nepal shall consist of the following three tiers:
- Supreme
Court;
- Appellate
Court; and
- District
Court.
(2) In
addition to the courts referred to in clause (1) above, the law may
also establish special types of courts or tribunals for the purpose
of hearing special types of cases:
Provided
that no special court or tribunal shall be constituted for the purpose
of hearing a particular case.
86.
Supreme Court:
(1) The
Supreme Court shall be the highest court in the judicial hierarchy.
All other courts and judicial institutions of Nepal, other than the
Military Court, shall be under the Supreme Court. The Supreme Court
may inspect, supervise and give directives to its subordinate counts
and other judicial institutions.
(2) The
Supreme Court shall be a Court of Record. It may initiate proceedings
and impose punishment in accordance with law for contempt of itself
and of its subordinate courts or judicial institutions.
( 3 )
The Supreme Court shall, in addition to the Chief Justice of Nepal,
consist of up to a maximum of fourteen other Judges. If at any time,
the number of existing Judges becomes insufficient due to an increase
in the number of cases in the Supreme Court, ad hoc Judges may be
appointed for a fixed term .
87.
Appointment, Qualifications and conditions of Service of Judges of the
Supreme Court:
(1) His
Majesty shall appoint the Chief Justice of Nepal on the recommendation
of the Constitutional Council, and other Judges of the Supreme Court
on the recommendation of the Judicial Council. The tenure of office
of the Chief Justice shall be seven years from the date of appointment.
(2) Any
person who has worked as a Judge of the Supreme Court for at least
five years is eligible for appointment as Chief Justice.
( 3 )
Any person who has worked as a Judge of an Appellate Count or in any
equivalent post of the Judicial Service for at least ten years; or
has practiced law for at least fifteen years as a law graduate advocate
or senior advocate; or who is a distinguished jurist who has worked
for at least fifteen years in the judicial or legal field is eligible
for appointment as a Judge of the Supreme Court.
Explanation:
For the purpose of this clause, services rendered prior to the commencement
of this Constitution as a Judge of a Regional Court or Zonal Court
shall be deemed as service rendered in an Appellate Court.
(4) If
the office of the Chief Justice becomes vacant, or the Chief Justice
is unable to carry out the duties of his office due to illness or
any other reason, or he cannot be present in office due to a leave
of absence or his being outside of Nepal, His Majesty may designate
the seniormost Judge to act as the Acting Chief Justice.
(5) The
Chief Justice or any other Judge of the Supreme Court shall hold office
until he attains the age of sixty five years.
(6) The
Chief Justice or any other Judge of the Supreme Court may, by submitting
to His Majesty his resignation in writing, resign his office at any
time.
( 7 )
The Chief Justice or any other Judge of the Supreme Court shall be
removed from his office if, for reasons of incompetence, misbehavior
or failure to discharge the duties of his office in good faith, the
House of Representatives, by a two-thirds majority of the total number
of its members, passes a resolution for his removal and the resolution
is approved by His Majesty.
( 8 )
The Chief Justice or any other Judge of the Supreme Court charged
pursuant to clause (7) shall be given a reasonable opportunity to
defend himself, and for this purpose, the House of Representatives
may constitute a Committee of Inquiry consisting of its members and
legal experts for the purposes of recording the statement of the Judge,
collecting evidence and submitting its findings. The working procedure
of the Committee shall be determined by law.
(9) The
Chief Justice or the Judge of the Supreme Court against whom impeachment
proceedings are being initiated pursuant to clause (7) shall not perform
his duties until the proceedings are final.
( 10)
Except as otherwise provided for in this Constitution, the remuneration,
allowances, leave, pension, gratuities and other conditions of service
of the Chief Justice and other Judges of the Supreme Court shall be
regulated by law.
( 11
) The remuneration, privileges and other conditions of service of
the Chief Justice and other Judges of the Supreme Court shall not
be altered to their disadvantage.
(12)
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 Service, nor shall he be entitled to practice law before
any office or court:
Provided
that nothing in this clause shall be deemed to be a bar to his appointment
to a political position, to a position concerning judicial inquiry
or to a position in which his responsibility extends to giving his
advice, opinions and recommendations on the basis of study, research
and investigation in the field of justice or law.
( 13)
The Chief Justice may, on the recommendation of the Judicial Council,
appoint a retired Judge of the Supreme Court or any person who is
qualified to be appointed Judge of the Supreme Court pursuant to this
Article, as an ad hoc Judge for a fixed term. The ad hoc Judge thus
appointed shall, in carrying out his duties in the capacity of Judge,
be entitled to remuneration, allowances, leave and transportation
facilities similar to that of a Judge of the Supreme Court:
Provided
that the Chief Justice shall obtain approval from His Majesty before
malting an appointment under this clause.
88.
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 as 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. For these purposes, 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-
- the
Supreme Court shall not be deemed to have power under this clause
to interfere with the proceedings and decisions of the Military
Court except on the ground of absence of jurisdiction or on the
ground that a proceeding has been initiated against. or punishment
given to, a non-military person for an act other than an offense
relating to the Army.
- except
on the ground of absence of jurisdiction, the Supreme . Court
shall not interfere under this clause with the proceedings and
decisions of Parliament concerning penalties imposed by virtue
of its Privileges.
( 3 )
The Supreme Court shall have original and appellate jurisdiction as
defined by law.
(4) The
Supreme Court may review its own judgments or final orders subject
to the conditions and in the circumstances prescribed by law.
(S) If
His Majesty wishes to have an opinion of the Supreme Court on any
complicated legal question of interpretation of this Constitution
or of any other law, it shall, upon consideration on the question,
report to His Majesty its opinion thereon.
(6) Other
powers and procedures of the Supreme Court shall be as prescribed
by law
89.
Establishment and Management of Appellate Courts and District Courts:
The establishment,
management and jurisdiction of the Appellate Courts, District Courts
and other courts subordinate to the Supreme Court shall be determined
by law subject to this Constitution.
90.
Qualifications for Judges of Appellate Courts. and District Courts:
(1) Any
person who is a Nepali citizen shall be eligible for appointment as
Chief Judge or other Judge of an Appellate Court if he, having a Bachelor's
Degree in law, has worked as a District Judge or worked in any other
equivalent post for a period of at least seven years; or has practiced
law for at least ten years as a law graduate advocate or senior advocate;
or has taught law or done research thereon or has worked in any other
field of law or justice for at least ten years.
(2) A
person who is a Nepali citizen, who has a Bachelor's Degree in law,
and has worked for at least four years as a second class gazetted
officer in the Judicial Service is eligible for appointment as a District
Judge:
Provided
that nothing herein shall prevent the continuance or reappointment
of the Judges who at the commencement of this Constitution are working
as Judges.
(3) Unless
the subject or context otherwise requires, the word "Judge"
as mentioned in this Article and ensuing Articles shall mean and include
an Additional Judge.
91.
Appointment and Conditions of Service of the Judges of Appellate Courts
and District Courts:
(1) His
Majesty shall, on the recommendation of the Judicial Council, appoint
any Chief Judge and Judges of the Appellate Courts and any Judges
of the District Courts:
Provided
that His Majesty may delegate His authority to the Chief Justice
for the appointment of the District Judges to be made on the recommendation
of the Judicial Council.
(2) The
Chief Justice may transfer a Judge of an Appellate or District Court
from one court to another on the recommendation of the Judicial Council
.
( 3 )
If the Judicial Council recommends that a Chief Judge or any other
Judge of an Appellate Court or any Judge of a District Court be removed
from his office for reasons of incompetence, misbehavior or failure
to carry out the duties of his office in good faith, or if it recommends
that it is necessary and expedient to initiate proceedings against
such Judge in accordance with law for reasons of misbehavior, and
if such recommendation is accepted by His Majesty, such Chief Judge
or Judge shall be so removed from his office or proceedings will be
initiated against him in accordance with law:
Provided
that the Chief Judge or any other Judge who is facing such charge
shall be given a reasonable opportunity to defend himself before
the said recommendation is made and for this purpose, the Judicial
Council shall cause an investigation to - be made by a Committee
of Inquiry under the Chairmanship of a Judge of the Supreme Court
for the purposes of recording the statement of the Judge, collecting
evidence and submitting its findings.
(4) A
Chief Judge or a Judge of an Appellate Court, or a Judge of a District
Court may, by submitting to His Majesty his resignation in writing,
resign his office.
(5) A
Chief Judge and other Judges of an Appellate or District Court shall
continue to hold office until the age of sixty three.
(6) The
remuneration, allowances, leave, pension, gratuities or other privileges
and other conditions of service of a Chief Judge and other judges
of an Appellate or District Court shall be as determined by law.
(7) The
remuneration, privileges and conditions of service of a Chief Judge
and other Judges of an Appellate Court or District Court shall not
be altered to their disadvantage.
92.
Judges not to be Transferred to. or Engaged in. any other Assignment:
A Judge
shall not be transferred to, engaged in, or deputed to, any work except
that of a Judge:
Provided
that His Majesty may, in consultation with the Judicial Council,
depute for a specified period a Judge of the Supreme Court or a
Chief Judge of any Appellate Court to work concerning judicial inquiry,
to legal or judicial investigation or research, or to any other
work of national concern. With regard to other Judges of the Appellate
Courts and District Courts, the Chief Justice may, in consultation
with the Judicial Council, depute them to the above works, including
election works.
93.
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, and dismissal of Judges,
and other matters relating to judicial administration, which shall
consist of the following as its Chairman and members:-
- the
Chief Justice, ex - officio Chairman;
- the
Minister of Justice, ex-officio member;
- the
two seniormost Judges of the Supreme Court, ex-officio members;
and
- one
distinguished jurist to be nominated by His Majesty.
(2) Notwithstanding
anything contained in clause ( 1) above, if it becomes necessary for
the Judicial Council to consider any matter relating to a Judge who
is a member of the Council or to make a recommendation to His Majesty
about such Judge, the Judge next in seniority shall take part as a
member.
( 3 )
The term of office and privileges of the member referred to in sub-clause
(d) of clause (I) shall be as prescribed by His Majesty.
(4) The
powers and duties of the Judicial Council other than those referred
to in clause (1) shall be as prescribed by law.
( 5 )
The Judicial Council may frame rules to regulate its business. Such
rules shall become effective upon approval by His Majesty.
94.
Judicial Service Commission:
(1) In
appointing, transferring or promoting Gazetted Officers of the Judicial
Service or taking departmental action concerning such officer in accordance
with law, His Majesty's Government shall act on the recommendation
of the Judicial Service Commission:
Provided
that His Majesty's Government shall consult the Public Service Commission
for the purpose of permanent recruitment to gazetted posts of the
Judicial Service from persons who are not already in the Government
Service or from persons being promoted from non-gazetted to gazetted
posts within the Judicial Service.
(2) The
Judicial Service Commission shall consist of the following as its
Chairman and members:-
- the
Chief Justice, - ex-officio Chairman;
- the
Minister of Justice, ex-officio member;
- the
Seniormost Judge of the Supreme Court, ex-officio member;
- the
Chairman of the Public Service Commission, ex-officio member; and
- the
Attorney-General, ex-officio member.
( 3 )
Other powers, duties and procedures of the Judicial Service Commission
shall be as determined by law.
95.
Duty to Extend Cooperation:
It shall
be the duty of His Majesty's Government and the offices and officials
subordinate to His Majesty's Government to act in aid of the Supreme
Court and other courts in carrying out the functions of dispensing
justice.
96.
Orders and Decisions of Courts to be Binding:
(1) All
shall abide by the orders and decisions made in the course of hearing
of a suit by courts.
(2) Any
interpretation given to a law or any legal principle laid down by
the Supreme Court in: the course of hearing of a suit shall be binding
on His Majesty's Government and. all offices and courts.
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