Characteristics of Existing Nepali Legal System:

Concepts; Sources; Original or Hybrid

CONCEPTS

Introduction:
Questionable explanation of the term “secular” in the present constitution
under Article 14, Part 1 debates with the declaration of Nepal as a Secular State
in 4th Jestha, 2063. However, what we all acknowledge is that Nepali society has
been structured based on Hindu Religion. Therefore, it was natural for Nepali
Legal System to be originally guided by Hindu Philosophy and Ideology.
According to John Hanry Merryman, “A legal System is an operating set
of Legal institutions, procedures, and rules”. It develops on due course of time
depending on various factors. Generally, the choices for the development of law
and legal system are:
1. On the basis of existing customs or developed independently over a long
period of time in their own history of a country.
2. On the basis of scholarly effort of having developed by codified law.
3. On the basis of court practice.
Nepali Legal System originally belonged to the First Category. It
developed over a long period of time independently on the basis of religious
scriptures like Vedas, Shrutis and Smritis of Manu, Yagyavalkya, Narada and
Bhrihaspati before the reception of foreign laws. After the reception, Nepali Legal
System has gone through many difficulties and changes, which has resulted the
existing Nepali Legal System.
Development:
Nepali Legal System developed independently on the basis of existing
customs and Religious texts. Mundhum, Shrutis, Smritis and Dharmashastras
were the principal reference for Justice during the development of Legal System
from the period of Kirats to Shahs. The Muluki Ain of 1910 B.S. was also based
on Dharmashastra. It should be noted that Dharma, the science of law, justice and
rational principles is not synonymous with Religion.
 Nepali Legal System started to lose its indigenous character and identity
after the political change of 2007 B.S. There was no research and study about the
legal system and no justifications were given while leaving one system of legal
thinking and adopting the other. Adoption of foreign law is a common historical
phenomenon. And, mainly after the overthrow of Rana regime, Nepal has adopted
many primary as well as secondary rules from outside. The reasons of adoption
can be:
1. Because of less priority given to academic research, law of
Dharmashastra could not adequately meet the changing need of time. The
law based on Dharma remained static and failed to represent the
aspirations of the people. So, the state became unsuccessful in developing
its own Legal System in consonance with socio-cultural change.
2. High skilled human resources to develop a strong and effective system of
law and Justice was lacking.
3. The leaders who led the country during democratic movement were
trained in Western Education in foreign countries.
4. Development of modern law in Nepali society was at its elementary stage
and the fulfillment of legal gap was necessary.
Regarding the reception of foreign laws, Nepal received only the concepts
but ignored the fundamental contents leaving the Law and Justice System in
transition and passing through critical stages. Promulgation of 7 constitutions in
the period of 68 years clearly depicts the condition of our legal stability.
Modernization/Westernization in Constitution:
1. Prof. Ram Ugra Singh (Lucknow University) was invited to prepare the
draft legislation of Interim Government of Nepal Act of 1951 A.D.
2. Sir Ivor Jennings of England was invited to prepare the draft constitution
of 1959 A.D.
Singh and Jennings naturally transplanted the norms of the constitutional
system they were familiar with into the newly framed constitutions of Nepal. AS
a result, many provisions of Interim Government of India Act were borrowed in
the Interim Government of Nepal Act 1951 and the Westminster Model of
Governance was accepted in the constitution of 2015 B.S.
While making laws, we received dozens of fundamental rules of Anglo-
American Legal System but, they were not able to meet our needs and aspirations
for justice because there was the problem of Social Compatibility. Also, the
received rules were not known to the larger populace and enforcing authorities
required a long time to be acquainted with them. This created a popular
dissatisfaction with the Legal System which resulted instability in our Legal
System.
Major Events which have resulted the present Legal System:
 2007 B.S.: Ram Ugra Singh was invited to Nepal to prepare the draft
legislation of Interim Government of Nepal Act.
 2008 B.S.: Pradhan Nyayalaya Act. It introduced the doctrine of precedent
and writ system in Nepal.
 2010 B.S.: Law commission was formed (as recommended by Butch
Commission) and an Indian official was made the advisor of the
Commission. Different acts were brought into commencement on the
recommendation of the commission. Civil Right Act (2012 B.S.), Essential
Goods Protection Act, Foreign Currency Control Act, Interpretation of
Statue Act (2010B.S.) were some of the acts based on Anglo-Indian Model.
 Hari Prasad Pradhan also adopted the principles propounded by Indian
Courts as a persuasive source in absence of legal provision.
 2015 B.S.: Sir Ivor Jennings was invited to prepare the draft constitution
of 2015 B.S. Numerous statutes based on adversarial system mushroomed
after the 2015 constitution.
 2017 B.S.: The State Cases Act, 1961 A.D. It was the most remarkable
development in respect of adversarial system in Nepal. This act separated
investigation from adjudication. Before this, investigation in criminal cases
was conducted under the supervision and control of the court.
 2019 Constitution: Establishment of the institution of the Attorney
General.
 2028 B.S.: The report of the High Commission for Judicial Reform (under
chairmanship of Supreme Court Justice Bhagwati Prasad Singh)
recommended for the adoption of Anglo-American System.
 2031 B.S.: As per the draft of the High Commission for Judicial Reform,
Evidence Act, 2031 B.S. was commenced. It brought a fundamental change
in the procedure. Now, the onus of proof lies in the plaintiff or prosecutor.
 2039 B.S.: Due to popular dissatisfaction, again, a commission (on
chairmanship of Sardar Isworiraj Mishra) was formed. It made detailed
study on the pros and cons of the system. It recognized that Nepali Legal
System had evolved independently on indigenous culture.
 2047 B.S.: Promulgation of Constitution of 2047 B.S. made significant
effect on the development of Anglo-American inspired Legal System in
Nepal. The States Cases Act, 1993 A.D. finished all the possibilities of
 reinvestigation on the Court’s order and modeled the court fully as an
Umpire.
Changes in the Court Structure:
 2012 B.S.: Administration Of Justice Reorganization Act, but no
commencement.
 2013 B.S.: Supreme Court Act. Independent Judiciary. 3 tiers of courts
(Supreme, Appeal and Amini).
 2016 B.S.: Administration of Justice Act 1960 A.D. Created 4 tiers of
courts. ( Supreme, High, District and Ilaka)
 2018 B.S.: Administration of Justice (miscellaneous management) Act
1962 A.D. Abolished High Court. So, again 3 Tiers.
 Amendment in the act of 1960 renamed trial courts into District Courts
and the court of appeal (the then district Court) into Zonal Courts.
 Administration of Justice (reforms) Act of 1975 A.D. introduced 4 tiers
of courts. District Court, Zonal Courts, Regional Courts (in 4 Regional
Headquarters) and Supreme Court.
 2047 B.S.: Constitution,2047 B.S. had provisions for 3 Tiers of
courts.(District, Appeal, Supreme)
 2072 B.S.: Constitution promulgated in 2072 B.S. has the provisions
for District Court, High Court and Supreme Court.
Involvement of Hindu King:
During the time when the Interim Government of Nepal Act 1951 was
enacted, the role of King was almost zero. The Act established Pradhan
Nyayalaya in the form of independent apex court. The Pradhan Nyayalaya Act of
1953 made the court more powerful. Hence the Pradhan Nyayalaya began to look
into the constitutional validity and administrative actions as well as legislative
enactments. The court held that the Interim Government of Nepal Act do not
authorize executives to make law, so the ‘sawal’ made by the King with the
advice of council of ministers deemed unconstitutional.
After Pradhan Nyayalaya struck down some of the provisions of
Kathmandu Valley Magistrates’ sawal which were repugnant to the Pradhan
Nyayalaya Act in B.P. Koirala V. Kathmandu Magistrate case, the King began
to be actively involved and omitted the writ jurisdiction of Pradhan Nyayalaya
Act. The King at that time, Tribhuwan, made it clear through declarations that the
supreme authority of administrative, judicial and legislative powers of the nation
have been bestowed upon the crown, repeatedly.
 Thus the feeling of being powerless due to the rise of the Pradhan
Nyayalaya resulted the rise of King and his active involvement in Nepali Legal
System. In Constitution of Kingdom of Nepal, 2015 B.S., it is mentioned in
preface about the King following Hindu religion. So, since then till the fall of the
Hindu King in 2065 B.S., Nepali Legal System was influenced by the Hindu
King.
Fall of Hindu King:
After the Insurgency of 10 years followed by the revolution of 2062/63
B.S., Gyanendra descended from the throne on 29th Jestha, 2065 because of his
steps which vested all the powers in him. This marks the fall of the Hindu King.
Major Concerns of Nepali Legal System:
1. Confusion on the basis of legal system:
Although Nepal has accepted the western liberal model of constitutional
polity, the Supreme Court of Nepal has always remained in confusion about
the basic values if Nepali Legal System.
In Meera Dhungana Case, Supreme Court declined to declare the section
16 on Chapter of Partition on the ground of Traditional Social practices. But,
in Annapurna Rana Case, Supreme Court interpreted the provisions of the
constitution and law in western liberal concept and recognized the openness
in sexual relations and extramarital relation which has been different from our
social values.
2. Frequent changes in the Legal Structure:
The legal system always appears to be in transition in Nepal due to the
frequent changes in Legal Structure. In 1962, the rule of joint investigation
and prosecution by police personnel was introduced abolishing the rule of
investigation and prosecution by police personnel. Evidence Act of 1974
adopted certain adversary rules in the process of collection of evidence. The
1990 constitution assigned the work of criminal investigation to the police
personnel and the work of prosecution to the prosecutors. In the past years the
court structure was changed even more frequently.
The frequent changes made on experimental basis created uncertainty with
the administration of justice. Frequent jurisdictional changes not only invited
uncertainty and instability but also contributed to the imbalanced distribution
of case among various courts which resulted delay and slow delivery of
justice.
3. Research and Development and Nepali approach to Law Commission;
Throughout history, judiciary was one of the neglected branches of the
state system. Legal studies was one of the areas given least priority. Except
for some studies done by some committees namely Judicial Reforms
Committee (1971), Royal Judicial Reform Commission (1983), Court
Management Committee (1997) and Records Management Committee (1997),
no significant studies are carried in the area of Judicial Reform.
Nepali approach to Law Commission is different from practices in other
countries in the sense that it is made responsible for drafting rather than that
of legal research.
4. Budgetary Constraints:
Nepal is one of the few countries which invests minimum amount for the
administration of justice. This is one of the reasons the Courts are unable to
introduce the concept of Research and Development. Because of the
insufficient budget allocation, administration of justice is compelled to follow
the legacy of old and traditional work style. Besides, the Courts are deprived
of securing services from scientific equipment, new technologies like DNA
testing and others.
5. Court and Technology:
Modern technology like good Computers, Internet are not available in all
the courts of Nepal. Technologically, Nepali Courts are much behind the
times. One of the reasons of following traditional style of work is because of
the inability to introduce modern technology in the performance of the court
system.

6. Language:
Because of language, only a limited number of the laws and judicial
decisions have been available for foreign readers. Because of language
difficulty, international community is not able to study and observe Nepali
Legal System at work. This has somehow slowed down the development of
Nepali Legal System.
 7. Non-formal Law:
Non-formal law has played active role in various parts of the country.
Large number of cases which should fall under the court jurisdiction have been
resolved by nom-formal forces like Mukhiya, Subba, Chaudhary and
influential personalities of various locations. Settlement of disputes by them
is unconstitutional, however the number of case settled by them is estimated
to be much more than the cases resolved by the courts of law. Public
confidence towards them is not slackening.

SOURCES

Nepali Legal System historically resembles to the Civil Law in many

respects. It is because of the similarity in the mode of development. It developed
on the basis of codification in the early phase. Also, after 2007 B.S. and after the
Pradhan Nyayalaya Act, Nepali Legal System developed on Anglo American
Model. So, the sources of Civil Law and Common Law along with our native
concepts of customs constitute the Sources of Nepali Legal System. Sanads and
Sawals which were regarded as the sources of Nepali Law are not regarded such
now. The sources of Nepali Law are:
A. Binding Sources:
1. Constitution:
Constitution is the supreme law of Nepal. The Constitution of Nepal
promulgated in 2072 B.S. states, “This Constitution is the fundamental law of
Nepal. Any laws inconsistent with this Constitution shall, to the extent of such
inconsistency, be void.”
2. Delegated legislation:
Delegated legislation is that which is made by any other authority than the
sovereign power, and therefore is dependent for its continued existence and
validity on some superior or supreme authority. The primary use of delegated
legislation is to supplement Acts of parliament by prescribing the detailed and
technical rules required for operation. Reason for delegated legislation are to
lessen the pressure on legislature, technicality of subject matter and others.
 3. Judicial decisions:
After the enactment of Pradhan Nyayalaya Act, 2008 B.S., Nepali Legal
System has relied heavily on Judicial Decisions as the source of law. The
Constitution of Nepal has followed the tradition of recognizing the precedent.
4. Customs and usage:
Customs are the earliest foundation of law in every community. Customs
are the law that arise from the immemorial usage in the community. Society
develops customary laws from the time immemorial and such rules of the society
can be accepted and recognized by the state as law.
Muluki Ain provides that no one shall be punished for a marriage or sexual
intercourse in keen relation and such marriage shall be valid in accordance with
their tradition followed by their caste or ancestry.
5. Treaties and Conventions:
When the state is a party of international treaties and conventions, such treaties
and convention are also source of law.
In Nepal, the Treaty Act, 1991 provides that provision of international
convention shall prevail if any provision of domestic law contravenes with the
provision of international convention, if Nepal is a party or ratified such
convention.
B. Persuasive Sources:
Comparative law i.e. rules of foreign law, precedents and customs looked up
on to find solution in case of grey areas or in absence of law.
Opinions, expressions and writing of the legal experts.
Minimum standards of International Human Rights and Humanitarian Law.

CLASSIFICATION; Original or Hybrid

As stated earlier, before 2007 B.S., Nepalese Legal System was completely
based upon Hindu Religious Law but after the revolution of 2007 B.S. and
overthrow of Rana Regime, it started accepting foreign laws due to the
modernization.
 The Judicial Reform Commission formed in 2027 B.S. under Ratna Bahadur
Bista concluded that since the Judicial and Legal conventions of Nepal did not
match the French system it would be like travelling in the dark to adopt the French
System. It recommended for the adoption of the Anglo American System.
The Royal Judicial Reform Commission formed in 2039 B.S. under Sardar
Isworiraj Mishra made detailed study of the system and recognized that Nepali
Legal System had evolved independently since Lichchhavi period based on
Hindu Dharmashastra and Smritis. It says, “The saying that those who seek
justice should go to Gorkha proves that Gorkha kingdom was famous for its own
indigenous judicial system…. We have adopted adversarial system without taking
account of our conditions and without considering the effects of introducing new
system… our ancient judicial system, in which the court itself used to be involved
in investigation, prosecution and adjudication in some cases, were similar to that
of inquisitorial system.”
It developed over a long period of time independently on the basis of
religious scriptures like Vedas, Shrutis and Smritis of Manu, Yagyavalkya,
Narada and Bhrihaspati before the reception of foreign laws. After the reception,
Nepali Legal System has gone through many difficulties and changes,
westernization and modernization which has resulted the existing Nepali Legal
System.
Nepali Legal System is influenced by many systems of law along with the
involvement of the native concepts, customs and usages. The first codified law of
Nepal, Muluki Ain 1910, is influenced by Civil law in form but in essence is
Hindu law. Nepal has the provision of written constitution which is the reception
of Civil law. Like in Civil law system Nepal also has special courts. Acceptance
of precedent and adversarial system are the influences of common law system.
Rules concerning state owned enterprises, cooperatives are influenced by
Socialist law.
It can be concluded that the Nepalese legal system was original, which was
based on Hindu philosophy before 2007 B.S. and it transformed as hybrid legal
system after 2007 B.S. due to its modernization by reception of foreign laws along
with the Hindu concepts and native customs and usages. However, after the
overthrow of Hindu King and increasing modernization, the Hindu Concept of
Dharma is becoming less popular.
References:
1. Khanal Bishal, Regeneration of Nepalese Law, Bhrikuti Academic
Publications, 2000 A.D.
2. Tripathee Rewati Raj, Nepalese Legal System, Lumbini Prakashan, 2011
A.D.
3. Shrestha Gyaindra Bahadur, Hindu Jurisprudence, Nepalese Legal System
and Comparative Law, Pairavi Prakashan, 2072 B.S.
4. K.C. Yadav Kumar, Comparative Legal Systems - A Primer, 2011 A.D.
5. Some part of sources from Old Presentation.