|
The
Constitution of the Kingdom of Nepal
Part 11 Judiciary
Article 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.
Article 85 Courts of Kingdom of Nepal
(1) Courts in the Kingdom of Nepal shall consist of the following three
tiers:
(a) Supreme Court,
(b) Appellate Court; and
(c) 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.
Article 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 courts 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.
Article 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) 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 Court or in any
equivalent post of the Judicial Service for at least ten years, or has
practised 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, misbehaviour
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 Chief
Justice and other Judges of the Supreme Court shall not be altered to
their disadvantage.
(12) Any person once 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 judiciary
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 prior
approval from His Majesty before making an appointment under this clause.
Article 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 extraordinary 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 to 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 habeas corpus, mandamus, certiorari, Prohibition and
quo warranto: - Provided that:
(a) 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 offence relating to the Army.
(b) 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 judgment or final orders subject
to the conditions and in the circumstances prescribed by law.
(5) 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, the Court 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.
Article 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.
Article 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 practised law for a
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 the 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.
Article 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 Courts be removed
from his office for reasons of incompetence, misbehaviour 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 misbehaviour, 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 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.
Article 92 Judges not to be Transferred to, or
Engaged in, any other Assignment
A Judge shall not be transferred to, or 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.
Article 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: -
(a) the Chief Justice, ex-officio Chairman,
(b) the Minister of Justice, ex-officio member,
(c) the two seniormost Judges of the Supreme Court, ex-officio members;
and
(d) 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 (1) 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.
Article 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 recommendationof
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: -
(a) the Chief Justice, ex-officio Chairman;
(b) the Minister of Justice, ex-officio member;
(c) the Seniormost Judge of the Supreme Court, ex-officio member;
(d) the Chairman of the Public Service Commission, ex-officio member;
and
(e) the Attorney-General, ex-officio member.
(3) Other powers, duties and procedures of the Judicial Service Commission
shall be as determined by law.
Article 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.
Article 96 Orders and Decisions of the 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.
|
|
