COURTS SYSTEM IN NEPAL
The Constitution provides three tiers of Court which include the Supreme Court of the Kingdom of Nepal, the Court of Appeal and the District Courts. There is no distinction between Criminal and Civil Court except some basic procedures.
District Court is the Court of first instance upon which Court of Appeal hear appeal. In addition to these regular courts there is provision in constitution to establish special types of courts or tribunals for the purpose of hearing special types of cases by the law. According to these provision there are four Revenue Tribunals, one Administrative Court, one Labor Court and one special court are functioning under the respective laws. These institutions are under the judicial control of the Supreme Court.
POWER AND FUNCTIONS OF SUPREME COURT
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 extra judicial powers include the power of rendering advice to HM the King (if HM the King so wishes), the power of making rules, administration of all the Court of Appeal and all the District Courts, formulating policies and programmes regarding judicial administration, managerial reforms in various courts, the publication and dissemination of the Supreme Court decisions.
The judicial power of the Supreme Court is being 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;
The jurisdiction of the special bench is to hear the petition concerning the constitutionality of the law. Similarly to provide advisory opinion to the His Majesty the King falls under the jurisdiction of the Special bench. Further, any cases referred to special bench by Chief Justice of Nepal are to be heard by this 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 have not unanimity in the dicision of the devision bench or the cases which is 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 referred any cases to the full bench if he thinks the case is fit to be heard by the full bench.
The Bench composed by two judges 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, to make review of its own judgements and to make revision of the decision of the court of Appeal as specified by the law.
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.
JUDICIAL POWERS OF SUPREME COURT
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.
The Supreme Court to issues 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.
Power of Hearing Appeal
The Constitution has given the power to hear appeals (as specified by the law) against the final decisions of the Court of Appeal. The following cases fall under the appellate jurisdiction of the Supreme Court:
- Cases decided by the Court of Appeal under their original jurisdiction,
- If the Court of Appeal overrules the decision of the District Court with a substantially different effect,
- Cases in which more than 10 years of imprisonment was imposed by a subordinate court, and
Cases referred to the Supreme Court by the Court of Appeal (i.e. in cases of sentencing for life imprisonment or life imprisonment with confiscation of properties).
Power to review its own judgments
The Constitution has given the power to review its own judgments as specified by the law. The 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 any legal remedy is not available under any law or the remedy available under the law is inadequate or ineffective, and
Power to Revise the Decisions of the Court of Appeal
The Supreme Court has power to revise the final decisions (which are non appellable) 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 made is in 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.
EXTRA JUDICIAL POWERS
The extra judicial power of the Supreme court of the Kingdom off Nepal are as follows:
Power to Render Opinion to His Majesty the King
His Majesty the King may ask the Supreme Court for its opinion on genuine constitutional and legal questions. The Supreme Court may submit its opinion to those inquiries.
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. The Supreme Court is authorized to make rules relating to the Supreme Court, and also empowered to make rules relating to the Court of Appeal and the District Courts.
Power to Formulate Judicial Policies
Full Court is the principal policy making body of the Nepalese judiciary which consist of all the justices 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.
COURT OF APPEAL
The Court of Appeal is empowered to hear appeals, writ petitions and try certain cases under their respective jurisdiction. The Court hears appeal against the judgments delivered by the District Courts and various quasi judicial bodies.
The Court issues the writs of Habeas Corpus and Mandamus in the cases of violation of civil rights of individual. Similarly, the Court may issue an order of injunction for this purpose.
The court of Appeal has the power to try certain cases as specified by law. Likewise, this Court shall try the cases transferred by the Supreme Court (from among the cases filed in the District Courts) taking into consideration to the complexity of the issue, or to provide speedier justice in prolonged disputes.
The District Courts are the court of first instance. The District Courts are responsible for trying all the civil and criminal cases. Section 7 of the Administration of Justice Act of 1991 has empowered the District Courts to try all the cases under their respective jurisdiction.
Execution of Judgements
Tahasildar (Execution Official) of the court is responsible for executing final judicial decisions of the Courts. Keeping coordination with the District Judge she/he has to collect the fine and imprison the offenders sentenced in the criminal offenses. Besides, she/he has to execute the final judgements delivered on various form of civil claims by providing damage, compensation, entitlement, partition, maintenance, monetary payments and so on (whichever applicable) to the concerned.
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.