Legal System

and
Judicial Administration
In Nepal
After the Period of 2047 BS
A Class Presentation
On
NEPALESE LEGAL SYSTEM
Sanitya Kalika (31/070)
Bhanubhakta Bhattarai (55/070)
 General Background
2017- King Mahendras Coup, Foundations for the
Panchayat System
2019- The Constitution of Nepal, 2019
2036- The Student Agitation
2037- The Referendum and the beginning of the so
called REFORMATIVE Panchayat System
2042- The Satyagraha, the Serial Bomb Blasts in
Kathmandu
2046- The Call for Democracy, the Mass Movement - I
2047- The Formation of the Interim Government and
the constitution drafting/changing commissions
Stages in the Legal System (After 47)
The Preliminary Phase- Chand Government (2046-47)
Interim Government (Enshrined with Legislative
Powers Also) (Article 129) (2047-48)
The Parliamentary System (After 2048 BS)
Government under the 1st Pratinidhi Sabha (2048-51)

Governments under the 2nd Pratinidhi Sabha (2051-56)

Governments under the 3rd Pratinidhi Sabha (2056-59)

(King Gyanendras MONOPOLY Period)

Government under the 3rd Pratinidhi Sabha-
Reinsteated (2063)
Stages in the Legal System (After 63)
Government under the 3rd Pratinidhi Sabha - Reinsteated
(2063)
Interim Government (under the Interim Legislature-
Parliament) (2063-65)
Governments under the 1st Constituent Assembly
Legislature-Parliament (2065-69)
Interim Government (Chief Justice-led Government)
(2069-70)
Government under the 2nd Constituent Assembly
Legislature-Parliament (Incumbent) (2070 - date)
Systematizing the new System
Formation of the Constitution Drafting Commission
Formation of the Constitutional Reform Recommendation
Commission - Which was later dissolved
Formation of the Constitution Recommendation Commission-
which ultimately gave a new constitution to the Kingdom, (i.e. the
Constitution of the Kingdom of Nepal, 2047, the BEST
constitution in the planet.
Enshrining legislative powers to the Interim
Government.
Parliamentary Elections, 2048
Local Elections, 2049
The Making of the 47 Constitution

A Constitution Recommendation Commission

(Drafting Commission) formed under the
chairmanship of Late Justice Bishwonath Upadhyaya,
prepared the draft of the new constitution and
submitted it to the Interim Council of Ministers headed
by Late Krishna Prasad Bhattarai, which, after putting
certain modifications into it, submitted it to HLM King
Birendra, who, on the historic date of the 23rd Kartik,
2047 (noontime), promulgated the CONSTITUTION
OF THE KINGDOM OF NEPAL, 2047.
 Salient Features of the
Constitution of the Kingdom of Nepal, 2047

Constitution to be the fundamental law of the land. (Art 1)

Sovereignty vested in Nepalese People, and would be
used as mentioned in the constitution. (Art 3)
Nepal to be a Hindu-state. (Art 4)
Nepali language written in Devnagari script will be the
National Language/ Official Language/ State
Language. ( ) (Art 6)
Constitutional Monarchy, king to be the Head of State.
Parliamentary Democracy.
Independent Judiciary.
 Salient Features of the
Constitution of the Kingdom of Nepal, 2047
Guarantee of 13 Fundamental Rights. (Part-3)
Guarantee of Right to Constitutional Remedy. (Art 23)

Extra-ordinary jurisdiction granted to the Supreme

Court, to restore violated fundamental rights. (Art 88)
Establishment of Judicial Council. (Art 93)
Establishment of Constitutional Council. (Art 117)
Establishment of National Security Council. (Art )
Establishment of Judicial Service Commission. (Art 94)
The Election Commission, the Commission for the
Investigation of Abuse of Authority, the Public Service
Commission, the Auditor General and the Attorney-
General were the constitutional organs/bodies.
 Salient Features of the
Constitution of the Kingdom of Nepal, 2047
King to be the Symbol of Nepalese nationality and
unity of the people of Nepal. (Art 27)
HMs income to be exempted from tax. (Art 30)
Executive power to be vested in HM and the Council of
Ministers, under the name of HMG. (Art 35 (1))
Parliament to consist: - (Art 44)
His Majesty

The Upper House- Rastriya Sabha (National Assembly)

The Lower House- Pratinidhi Sabha (House of Representatives)

King can do no wrong concept. (Art 31)

King could grant pardons. (Art 122)
 Salient Features of the
Constitution of the Kingdom of Nepal, 2047
Except as otherwise expressly provided as to
be exercised exclusively by His Majesty or at
His discretion or on the recommendation of
any institution or official, the powers of His
Majesty under this Constitution shall be
exercised upon the recommendation
and advice and with the consent of the
Council of Ministers (Executive). Such
recommendation, advice and consent shall be
submitted through the Prime Minister. (Art 35(2))
The Pratinidhi Sabha Declaration, 2063
The Declaration of the House of Representatives, 2063,
( , ) was a historic and landmark
decision of the Nepalese People (Peoples reps), which
was issued on 4th Jestha, 2063 BS.
It insured parliamentary supremacy.
For the first time in the history, the sovereignty was
believed to really have come under the hands of people.
The declaration widely cut off the powers of HM King.
The declaration was above (or had higher authority
than) the Constitution of the Kingdom of Nepal, 2047,
and was the fundamental law of Nepal.
The Pratinidhi Sabha Declaration, 2063
It declared the Pratinidhi Sabha to be the highest
sovereign and state authority of the Kingdom of Nepal.
It declared that the state powers shall be used through
that very Pratinidhi Sabha.
It aimed in institutionalizing the changes brought by
the Mass Movements of 2046 and 63 BS, and the 12-
point agreement between the 7 mainstream political
parties and the then rebelling Maoist forces.
It aimed in restructuring the state.
It aimed in initiating proceedings for the drafting of a
new constitution by a Constituent Assembly.
 Salient Features of the
Pratinidhi Sabha Declaration, 2063

All the powers vested in HM shall thereafter be used by

the Prime Minister and his cabinet.
HMG to be re-named as GoN.
Royal Nepal Army to be re-named as Nepal Army.
Non-parliamentarians can also become ministers.
All executive organs including administration, army,
police shall be under the government which will be
responsible to the Pratinidhi Sabha.
The provisions relating to the existing Raj Parishad and
the National Security Council were repealed.
CoAS will be appointed by the Council of Ministers.
 Salient Features of the
Pratinidhi Sabha Declaration, 2063

Tax shall be levied on the income of HM.

The expenditure and privileges of HM shall be
according to the decision of the Pratinidhi Sabha.
Questions relating to the acts done by HM can be
raised in courts and in the Pratinidhi Sabha.
The Pratinidhi Sabha shall have the exclusive right to
make, amend and repeal the laws relating to the
succession to the royal throne.
The Rajprasad Sewa will be made an organ of the Civil
Service (Nijamati Sewa.)
 Salient Features of the
Pratinidhi Sabha Declaration, 2063

The security of the Royal Palace shall be as so managed by

the Council of Ministers.
The existing national anthem of Nepal will be changed and
new anthem shall be adopted.
Nepal shall be a secular-state.
It will be the Pratinidhi Sabha to provide rights to every
organ and institution of the state, and they shall use their
rights deeming so.
All persons who are sitting in public positions shall re-take
their oath in the manner specified by the Pratinidhi Sabha,
else theyll be removed from posts.
The Pratinidhi Sabha had the rights to make laws for itself,
and of the removal of any difficulties which may occur in
course of implementation of this declaration.
The Making of the 63 Constitution
After the success of the Mass-Movement-II, to give a
legitimacy to the Pratinidhi Sabha Ghoshana done by
the House of Representatives, a new constitution was
to be made and enacted. For this purpose, a
constitution drafting committee formed under the
chairmanship of Late Justice Laxman Prasad Aryal,
prepared the draft of the new constitution and the
Pratinidhi Sabha promulgated it while the Interim-
Legislature Parliament formed as per the provisions of
the new constitution ratified the INTERIM
CONSTITUTION OF NEPAL, 2063.
 Salient Features of the
Interim Constitution of Nepal, 2063

Constitution to be the fundamental law of the land. (Art 1)

Sovereignty vested in Nepalese People. (Art 2)
Nepal to be a secular-state. (Art 4)
Nepali language written in Devnagari script will be the
Official Language while all other languages spoken in
Nepal will be National Languages. ( ) (Art 6)
Parliamentary Democracy.
Nepal to be a Federal Democratic Republic. (Art 4)
President to be the constitutional Head of State.(Art 36A)
Independent Judiciary.
 Salient Features of the
Interim Constitution of Nepal, 2063
Guarantee of 21 Fundamental Rights. (Part-3)
Guarantee of Right to Constitutional Remedy. (Art 32)
Extra-ordinary jurisdiction granted to the Supreme Court,
to restore violated fundamental rights. (Art 107)
Establishment of Judicial Council. (Art 116)
Establishment of Constitutional Council. (Art 149)
Establishment of National Security Council. (Art 145)
Establishment of Judicial Service Commission. (Art 114)
The Election Commission, the Commission for the
Investigation of Abuse of Authority, the Public Service
Commission, the Auditor General, the Attorney-General
and the National Human Rights Commission were the
constitutional organs/bodies.
 Salient Features of the
Interim Constitution of Nepal, 2063
Executive power to be vested in the Council of
Ministers, under the name of GoN. (Art 37(1))
An Interim Legislature-Parliament to consist: - (Art 46)
Members of then Rastriya Sabha

Members of then Pratinidhi Sabha

83 members form CPN (Maoist)

48 members nominated by the government

President to appoint PM, CJ and people in

Constitutional Posts, summon the Legislature-
Parliament.
President to grant pardons, on the recommendation fo
the Council of Ministers. (Art 151)
 Judicial Administration
20

The Constitution of the Kingdom of Nepal 2047

BS provides three tiers of Court, which include
the District, Appellate and Supreme Court. (Part 11)
Judicial Administration Act 2048 BS has made
the 75 District Court, 9 Appellate Court (now 16)
and 1 Supreme Court.
The Interim Constitution of Nepal 2063 BS also
provides three tiers of Court, includes the
District, Appellate and Supreme Court. (Part 10)
 Contd
21
District Court is the Court of first instance against
the judgment of which Court of Appeal hears
appeal. Supreme Court is the final court to hear
appeal.
Besides, the Constitution provides for establishing
special types of courts or tribunals under the
judicial control of the Supreme Court to deal
special types of cases, which include- Revenue
Tribunals, Administrative Court, Labor Court and
special court.
There is no distinction between Criminal and Civil
Court other than some basic procedures.
 Jurisdiction of District Court
22

1. To hear/try and settle all cases within its

jurisdiction ( : within the territory of district)
(see: Section 7 of the Administration of Justice Act 2048 BS)

2. To enforce/ implement judgments (decision) (through

)

3. To initiate proceedings against contempt of its own,

(if found guilty of contempt, the accused may be punished with a fine of up to
One Thousand Rupees or with imprisonment for up to One month or with both).
(section 18)

4. To issue necessary order

5. To impose fine who violates the order of the court
(section 29)
 Jurisdiction of Appellate Court
23

1. To hear and settle original cases ( : within its

territory) (see: Section 8 of the Administration of Justice Act 2048
BS)
2. To hear appeal (section 8)
3. To hear Writ (Writ jurisdiction: issue appropriate
orders and writs including the writs of habeas
corpus ( ), mandamus (), certiorari
(), prohibition (), quo warranto ( )
and Injunction ().
 Contd

4. To initiate proceedings against contempt of court, (if

found guilty of contempt, the accused may be punished with a fine of up to Five
Thousand Rupees or with imprisonment for up to Six month or with both).
(section 18)

5. To examine decisions referred for confirmation

( ): (in the case of life imprisonment with confiscation of
entire property or life imprisonment). (section 10)
6. To issue necessary order
7. To inspect subordinate courts (section 20)
8. To impose fine who violates the order of the court
(section 29)
 Jurisdiction of the Supreme Court
25

A. Ordinary Jurisdiction (see: section 7 to 23 of the

Administration of Justice Act 2048 BS)
1. To hear original cases and petitions ( )
2. To hear appeal (section 9)
(a) Cases tried and settled by the Court of Appeals under
original jurisdiction;
(b) Cases in which punishment of imprisonment for Ten
years or more has been imposed;
(c) Cases in which reversal of decisions made by the
original Court, body or authority has been made by
the Court of Appeal made on appeal against such
decisions.
Contd
26

3. To examine decisions referred for confirmation

( ): (in the case of life imprisonment with
confiscation of entire property or life imprisonment).
(section 10)
4. To review ( ) of its own judgement or final
order: (section 11)
(a) If the concerned party has come to know any fact
likely to materially affect the justice done in the case
only after the settlement of the case, or
(b) If it appears that the decision is contrary to the
precedent or legal principle enunciated by the
Supreme Court.
Contd
27
5. Revision () of Decision of Appellate Court
(in the cases which are not appealable to the Supreme
Court): (section 12)
(a) If the judgment or final order of the Court of Appeal
involves serious legal error in interpretation of the
Constitution or law;
(b) If the principle or precedent established by the Supreme
Court has not been followed or has been applied with false
interpretation;
(c) If any public property has been misappropriated or loss
caused in such property due to lack of proper evaluation of
the evidence contained in the case file in a case involving
dispute vis--vis public property; or
(d) If the justice is substantially affected due to lack of proper
representation of a child, woman, aged, disabled or
mentally retarded person.
 Contd
28

6. To hear on the contempt of court (if found guilty of

contempt, the accused may be punished with a fine of up to Ten
Thousand Rupees or with imprisonment for up to One year or with
both). (Supreme Court Act 2048, section 7)
7. To hear petition against interim order (section 16)
8. To withdrawal of cases from subordinate courts
(section 15)

B. Extra ordinary Jurisdiction

1. To declare any law void either ab initio or from the
date of its decision if it appears that the law is
inconsistent with the Constitution (Judicial
Review).
 Contd
29
2. To protect fundamental rights (Writ jurisdiction:
issue appropriate orders and writs including the
writs of habeas corpus ( ), mandamus
(), certiorari (), prohibition () and
quo warranto ( ).
3. Final interpreter of the constitution and other
laws
C. Miscellaneous Jurisdiction
1. To issue direction (section 30)
2. To frame Rules (section 31)
3. To inspect subordinate courts (section 21)
4. To impose fine who violates the order of the court.
 Conclusion
30

All this has helped the Nepalese Legal System to

expand further and adopt more modern legal
concepts to meet the needs of the changing Nepalese
society without losing its identity.
However, Nepals legal and judicial sector is
currently in the middle of dual transition. The first
transition is the very obvious, the drafting of the new
constitution. The second transition is the reform of
the civil and criminal laws of Nepal by enactment of
new legal codes (civil and penal codes and the
procedure code).
 Contd
31

The drafts of civil law, namely Civil Code and Civil

Procedure Code and criminal law legislations, namely
Penal Code, Penal Procedure Code and Criminal
Punishment (Assessment and Execution) Act are
already drafted. If political stability ensures in the
nation, there is a high prospect of these laws being
passed.
 The Making of Laws
Until the promulgation of the CoKoN, 2047, 11 Acts
were made by Late King Birendra.
After the promulgation of the CoKoN, 2047 and till the
starting of the first session of the 1st Pratinidhi Sabha,
19 Acts were made.
The 1st Pratinidhi Sabha made 128 acts.
The 2nd Pratinidhi Sabha made 111 acts.
The 3rd Pratinidhi Sabha made 53 acts.
In King Gyanendras monopoly rule, altogether 134
ordinances were issued!
 Some Precedents
Here, we have tried to mention some landmark
Supreme Court judgments which were related with the
interpretation of the constitution. (2047-72)
a) Tanakpur Case (2050)
b) The House of Reps Dissolve Cases (2051, 52 & 58)
c) Annapurna Rana v. KDC Case (2055)
d) Sahi Aayog Case (2062)
e) Vice-President Oath Case (2065)
f) Constituent Assembly Tenure Cases (2067, 68 & 69)
g) President & Vice-Presidents Removal Case (2070)
h) CA members (26) nomination case (2071)
ANY QUERIES??