JUDICIARY IN NEPAL
Article 100 (1) of the Interim Constitution of Nepal, 2007 provides that the judicial power of Nepal shall be exercised by the courts and judicial authorities pursuant to the constitution and other laws and recognized principles of justice. Article 101 of the constitution has expressed the provision of Supreme Court, Appellate Court and District Court along with the provision for establishing other courts, judicial authorities or tribunals for the settlement of special nature of cases.Supreme Court, as the most superior court of Nepal, is recognized as a court of record. At present, 16 Appellate Courts, 75 District Courts and other judicial authorities like Debt Recovery Tribunal, Revenue Tribunal, Administrative Court, Labour Court, Foreign Employment Tribunal and Special Court are discharging the duties of justice dispensation in Nepal.
The administration of justice of the country has been guided through the various statutes and regulations related with the court, including Interim Constitution of Nepal, 2007, Administration of Justice Act, 1991, Supreme Court Act, 1991, Supreme Court Regulations, 1992, Appellate Court Regulations, 1991 and District Court Regulations, 1994.
Jurisdiction of District Court: Except as otherwise provided in the prevailing law, the District Court shall have powers to try and settle, in original jurisdiction, all the cases within its jurisdiction.
Jurisdiction of Court of Appeal: (1) The Court of Appeal shall have powers to hear appeals against the original judgments or final orders and to review over the reference judgments according to the law, on cases or proceedings tried and decided by the District Courts under it and, except as otherwise provided in the prevailing law, by any other bodies or authorities under its territorial jurisdiction.
(2) The Court of Appeal shall have powers to issue orders of habeas corpus, mandamus or injunction, as required, for the enforcement of legal rights of any person infringed by anybody or authority under its territorial jurisdiction. (3) In addition to the powers as referred to in Sub-sections (1) and (2), the Court of Appeal shall have powers to try, under its original jurisdiction, and settle the following cases:
The cases which the Court of Appeal is empowered by law to try and settle under its original jurisdiction, (b) The cases in which the Supreme Court has considered appropriate and issued an order requiring the Court of Appeal to try in original jurisdiction and settle the case on grounds of hardship to the parties to the case due to the excessive prolongation of proceedings in the case or due to some serious or complicated legal issues involved in the case.
Appeal to the Supreme Court: (1) An appeal may lie in the Supreme Court against the judgments or final orders made by the Court of Appeals on the following cases: (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; 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.
Review: (1) The Supreme Court may review its judgment or final order in the following circumstance:
(a) If it appears that 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.
Notwithstanding anything contained in Sub-section (1), the Supreme Court shall not review its judgment or final order in the following circumstance: (a) If the judgment or final order has already been reviewed earlier, (b) If the questions raised on the petition made for review were also raised in the Division Bench of the Supreme Court and they were heard by the Full Bench because the judges divided in their opinions thereon, decision was already made by settling those questions,
(c) If the case has already been settled by way of revision pursuant to the prevailing law prior to the commencement of this Act, or
(d) If the judgment of the Court of Appeal has been confirmed in the case reviewed pursuant to Section 12(3) A petition for review may be made within Sixty days of the date of judgment in the case by the Supreme Court. ………………………..
Revision: (1) The Supreme Court may, in the following circumstances, revise the judgment or final order made by the Court of Appeal in the cases which are not appealable to the Supreme Court pursuant to this Act or the prevailing laws:
(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-à-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.
(2) A case once heard and adjudged in revision by the Supreme Court shall not be revised again.
(3) A petition for revision to be filed under this Section may be filled in the Supreme Court or the Court of Appeal having made such decision within Thirty Five days, excluding the time required for journey, from the date of decision by the Court of Appeal.
In making review or revision: During the review of a case pursuant to Section 11 or revision of a case pursuant to Section 12, the Supreme Court shall decide the case keeping itself limited within the grounds on which the order for review or revision has been granted and to the matters relevant thereto.
The Constitution of Nepal, 2015
PART-11
Judiciary
126. Courts to exercise powers related to justice: (1) Powers relating to justice in Nepal shall be exercised by courts and other judicial institutions in accordance with the provisions of this Constitution, other laws and recognized principles of justice.
(2) All must adhere to the order or verdict given by the court in relation to the court cases.
127. Courts: (1) There shall be the following courts in Nepal:
(a) Supreme Court,
(b) High Court, and
(c) District Court
(2) In addition to the courts referred to in Clause (1), other institutions may be established according to the need to adopt other means of alternatives of dispute resolution or judicial bodies to adjudicate cases at the local level according to the law.
128. Supreme Court (1) There shall be a Supreme Court in Nepal.
(2) The Supreme Court shall be the Court of Record. The Supreme Court shall have the final power to interpret the Constitution and law.
(3) The Supreme Court may inspect, supervise and give necessary directives to courts and other judicial institutions falling under its jurisdiction on matters relating to judicial administration or management.
(4) The interpretation of constitution and law or the legal principles propounded by the Supreme Court in relation to court cases must be followed by all. The Supreme Court can initiate a contempt of court case and punish according to the law against anyone obstructing its or its subordinate court’s act of judicial execution or not abiding by its order or verdict.
133. 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 void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with the Constitution.
(3) For this purpose, 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, except on the ground of absence of jurisdiction, the Supreme Court shall not, under this Clause, interfere with the internal affairs of the Federal Parliament and, the proceedings and decisions of the Federal Parliament concerning violation of its privileges and any penalties imposed thereof.
The Supreme Court shall have jurisdiction to hear original and appellate cases, to review its own judgments or interim order, to examine decision referred for confirmation, review cases or hear petitions. Such review shall be done by judge other than the one involved in original verdict.
(5) Notwithstanding the clause (4), after the completion of 10 years of the commencement of this constitution, Supreme Court shall have the right to initial hearing and passing judgment on issues under Article 137 (3). [3) The jurisdiction of the Constitutional Court shall be as follows:
(a) To resolve the dispute over the jurisdiction between the Federation and Province, among Provinces, between a Province and local level and among the local levels (of government),
(b) To resolve the dispute concerning the election of the Federal Parliament or Provincial Assembly, and the question of ineligibility of the member of the Federal Parliament or the member of the Provincial Assembly.]
(6) The Supreme Court shall hear appeal of cases that have been initiated and executed by the High Court, a subject of public interest litigation including a question related to the interpretation of the constitution and law or a case referred by the High Court along with its opinion that it would be appropriate for the Supreme Court to decide on it.
(7) Other rights and procedural of the Supreme Court shall be as per the Federal Law
134. Transfer of cases: (1) If a case including the same question in substantial terms are under consideration of the Supreme Court and High Courts and if the Supreme Court considers that the question is of public importance or if it is seen so in the petition of the Attorney General or the petitioner of the case, the Supreme Court shall have the right to invite the case and decide it together.
(2) If special circumstances arise whereby question could be raised on the judicial impartiality over the hearing of a case in any High Court, the Supreme Court may order according to the law by clarifying the reason and basis to transfer the hearing of the case from one High Court to another High Court.
137. Constitutional Court (1) There shall be a Constitutional Court in Nepal.
The jurisdiction of the Constitutional Court shall be as follows:
(a) To resolve the dispute over the jurisdiction between the Federation and Province, among Provinces, between a Province and local level and among the local levels (of government),
(b) To resolve the dispute concerning the election of the Federal Parliament or Provincial Assembly, and the question of ineligibility of the member of the Federal Parliament or the member of the Provincial Assembly.
(3) The decision of the Constitutional Court shall be final decision.
(4) The Constitutional Court shall continue to exist for ten years from the commencement of this Constitution. Following the period, the cases and records under consideration at the Constitutional Court shall be transferred to the Supreme Court.
139. High Court: (1) There shall be a High Court in every province.
(2) The High Court can initiate a contempt of court case and punish according to the law against anyone obstructing its or its subordinate court?s act of judicial execution or not abiding by its order or verdict.
(3) In addition to the Chief Judge, every High Court shall have judges in the number as provided in the Federal Law.
144. Jurisdiction of the High Court: (1) Any Nepalese citizen can petition in the High Court to annul any local law or part thereof formulated by Village Assembly or Municipal Assembly as per this constitution, if such law is inconsistent with provincial law formulated by provincial assembly. The High Court shall have the extraordinary right to annul such law from its commencement or from the date of the court order.
(2) The High 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 legal question involved in any dispute of public interest or concern, have the right to issue necessary and appropriate orders in the name of governments, office-bearers, institutions or individuals within its provincial jurisdiction.
(3) For the purpose of Clause (1), the High Court may issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.
(4) The High Court shall have jurisdiction to hear original and appellate cases and to examine decisions referred for confirmation, as provided for in law.
(5) Other powers and working procedures of the High Court shall be according to the federal law.
145. Transfer of cases: (1) If the High Court feels that any case under consideration at courts under its jurisdiction involved a question of provincial law and that the question needs to be resolved in order to decide the case, then the Court may invite such cases from the subordinate courts and give full decision on the case or decide on such questions and send it back to the original court.
(2) If a special circumstance of questions likely to be raised on the judicial impartiality appears, then the High Court may, by clearing the reasons and ground according to the law, order such cases to be transferred and heard from one district court to another district under its jurisdiction.
148. District Court: (1) There shall be a district court in every district.
(2) The local level judicial institutions established according to the provincial law shall remain under the District Court. The District Court may inspect, supervise and issue necessary instructions to its subordinate judicial institutions.
151. Jurisdiction of the District Court: (1) The District Court shall, unless provided otherwise in the law, have jurisdiction to hear original cases and execute all cases within its jurisdiction, hear petitions of habeas corpus, prohibitory order and other petitions according to the law, hear appeal over the decisions taken by the quasi-judicial bodies, hear appeal over the decision of the local level judicial institutions established according to the law of the province and initiate action and punish in contempt of court against those obstructing its or its subordinate courts acts of judicial execution or not abiding by the order or verdict.
(2) The jurisdiction of the district court and other provisions relating to its working procedure shall be as provided for in the law.
152. Specialized court: (1) In addition to the courts referred to in Article 130, the law may establish and constitute other specialized courts, judicial institutions or tribunal, for the purpose of hearing cases of special types and nature.
Provided that no specialized court, judicial institution or tribunal shall be constituted for the purpose of hearing a particular case.
(2) Cases related to criminal offense leading to prison sentence of more than 6 months shall not fall under the jurisdiction of any other institution other than a court or specialized court or military court or judicial body.
EMERGING BUSINESS ENVIRONMENT IN NEPAL
Nepal is included in the list of the least developed countries. The responsible causes for the Nepal to be least developed countries are;• Not to appear in the world arena till 1950,
o Not to develop basic infrastructure,
o To be geographically landlocked,
• Not to be dedicated in development etc.
But Nepal has been marching towards industrialization in a planed way for the last some years. It has entered in the 10Th plan. Nepal has adopted mixed economy. It has adopted the policy of free market and economy liberalization after 80s. It has already privatized some of the state owned public corporation. Nepal government has also adopted the policy to hand over state owned enterprises to private sectors expect those related to defense and other basic needs. The government has made no policy to nationalize any private company.
Provision in Constitution in relation to business
17. Right to Freedom: (1) Except as provided for by law no person shall be deprived of her/his personal liberty.
(2) Every citizen shall have the following freedoms:
(a) freedom of opinion and expression,
(b) freedom to assemble peacefully and without arms,
(c) freedom to form political party,
(d) freedom to form unions and associations,
(e) freedom to move and reside in any part of Nepal; and
(f) freedom to engage in any occupation or be engaged in employment, establish and operate industry, trade and business in any part of Nepal.
Section 51 (d) –State Policies
Policies regarding finance, industry and commerce:
(1) Strengthening national economy through the participation and free development of public sector, cooperative sector and private sector.
(2) Achieving economic prosperity with the maximum utilization of available resources and means by stressing on the roles of private sector in the economy;
(3) Promoting cooperatives with its maximum utilization for national development.
(4) Providing for regulation to maintain fairness, accountability and competitive atmosphere in all activities of economic sector to promote and mobilize them for the overall national development;
(5) Fair distribution of the fruits of development and available means and resources.
(6) Diversifying and expanding markets for productions and services through the development and expansion of industries and promotion of exports by identifying the areas of comparative advantages.
(7) Protecting consumer rights by maintaining discipline and business fairness by controlling anomalies and malpractices such as black-Draft of the Constitution of Nepal, Unofficial English Translation by International IDEA - 19 -
marketing, monopoly, artificial scarcity and unhealthy competition and making national economy competitive.
(8) Prioritizing domestic investment based on Nepali labor, skill and raw material for the development of the economy of the country through the protection and promotion of national industries and resources and means.
(9) According priority to domestic investment for development of national economy;
(10) Encouraging and mobilizing foreign capital and technology investment for infrastructure
development in the areas of export promotion, and import to suit national interest.
(11) Foreign aid shall be based on national needs and priority, and it shall be made transparent. The amount received as foreign aid shall be included in the national budget.
(12) Utilizing the knowledge, skill, technology and capital of the non-resident Nepalis for national development.