Notes of Chapter: 9 Judiciary. (from exam perspective).
Chapter: 9 Judiciary.
(Part 11, Article 126 to 156):
A. Basic concept of Independence of Judiciary.
The concept of independence of judiciary was started with Montesquieu in 18th century. Judiciary is one of the organs of state, which exercise power relating to justice.
All shall abide by the order or decisions made by the courts (Article 126(2)):
There shall be following courts in Nepal: (Article 127):
- Supreme court
- High court
- District court
Article 127 (2): In addition to the courts, judicial bodies may be formed at local level.
The term ‘independence’ means the condition of being free from dependence or control (Blacks law dictionary).
Alexandar Hamilton: There need to be a complete independence of judiciary in democracy to limit the government.
The independence of judiciary means that the judges are free to decide the case depending on the fact and law. While deciding cases judges must be free from the interference of government or parties of the case.
The judicial independence has been guaranteed by the Constitution of Nepal. However the judicial independence depends upon the method of appointing judges, their security of tenure and the way of fixing their salary including other condition of services.
But in Nepal, none of the above conditions are performed to keep judiciary independent. As in Nepal method of appoint judges is interfere by political influence and so does other conditions of services. EXAMPLES;
- Since then, Chief Justice Khilaraj Regime was appointed as chairman of Council of minister without resignation from post of chief justice, the Nepalese Judiciary started to be influenced.
- Impeachment proposal against Chief Justice Sushila Karki.
- Impeachment against Chief Justice Cholendra Shumsher Jabara.
- Attempt to intervention in parliamentary dissolution, case-1. Dev Gurung V. Prime Minister KP Sharma oli. 2. Sher Bahadur Deuwa Vs P.M KP Sharma Oli.
- Awarding medal to the judges.
According to Professor Purna Man Sakhya, there are five major factors indicating judicial independence;
- Structure, organization, jurisdiction and procedure of courts.
- Judicial selection, appointment and promotion procedures.
- Judicial tenure and removal mechanisms.
- Judicial remuneration and resources.
- Public confidence and participation in judiciary.
Basic elements of Independence of Judiciary:
- Method of appointing judges: In theory doctrine is good but in practice it is bad
- Security of tenure: It must typically be for a tenure dependent on good behavior, but in Nepal, it is fixed.
- Salary.
B. structure of judiciary with reference to power and functions in Nepal:
Article 127: Courts: (1) There shall be the following courts in Nepal:
- Supreme Court,
- High Court, and
- District Court.
(2) In addition to the courts under clause (1), judicial bodies may be formed at the Local level to try cases under law or other bodies as required may be formed to pursue alternative dispute settlement methods.
Function of supreme court:
- It is court of record.
- Final authority to interpret the constitution and laws.
- It may inspect, supervise and give necessary directives to court.
- Power to hear the case of contempt of court.
- Power to hear the five writs.
- Power to hear appeal over cases decided by high courts.
- Examine of reference (Sadhak).
- Power of revision of case.
- Judicial Activism
- Judicial review.
C. Contempt of court:
Provision of Contempt of court:
- Supreme court (Article 128(4))
- High court (Article 139(2))
- District court (Article 151(1))
West encyclopedia of American laws: contempt of court is behavior that opposes the authority, justice and dignity of the court.
In Nepal, a bill on contempt of court was made in 2067, which is yet to be passed by parliament.
Two types of contempt are: 1. Direct contempt. 2. Indirect contempt.
Cases:
1. Sarbhagya Ratna Tuladhar Vs Rastriya panchayat, NKP 2035, D.N 1157.
- The supreme court held that “The Rastriya Panchayat has no authority to arrest Mr. Sarbagya Ratna Tuladhar because he did not commit contempt of the Rastriya Panchayat by filing for contempt of court.”
2. Advocate Raviraj Bhandari Vs HOR and others.
- The power of court to see contempt of cases is not to make court arbitrary but to ensure independence of judiciary and rule of law.
D. Judicial council and Judicial service commission in Nepal:
Judicial Council (Article 153):
- Judicial Council Formation:
A Judicial Council is established to recommend or advise on the appointment, transfer, disciplinary action, and dismissal of Judges, as well as other judicial administrative matters.
Composition:
- Chief Justice (Chairperson)
- Federal Minister for Law and Justice
- Senior-most Judge of the Supreme Court
- One jurist nominated by the President on the Prime Minister's recommendation
- A senior advocate with at least twenty years of experience, appointed by the President on the recommendation of the Nepal Bar Association.
- Term and Remuneration: Members under sub-clauses (d) and (e) serve for four years and receive remuneration and facilities equivalent to a Supreme Court Judge.
- Removal of Members:
Members under sub-clauses (d) and (e) are removed from office in the same manner and on the same grounds as a Supreme Court Judge.
- Complaint Review:
The chairperson and a member may study and report on complaints against any Judge to the Judicial Council.
- Inquiry Committee Formation:
If a preliminary inquiry suggests the need for a detailed expert investigation, the Judicial Council may form an inquiry committee.
- Corruption Investigation:
The Judicial Council can investigate and prosecute Judges (excluding those removable by impeachment) for corruption and abuse of authority.
- Qualification Records:
The Judicial Council must maintain updated records of individuals qualified for positions such as Chief Justice, Supreme Court Judges, and High Court Chief Judges and Judges.
- Additional Functions:
Other functions, duties, and powers of the Judicial Council are defined by federal law.
Judicial service commission: (Article:154).
- Appointment, Transfer, and Promotion Oversight: Function,
The Government of Nepal must act on the recommendation of the Judicial Service Commission in appointing, transferring, promoting, or taking departmental action concerning gazetted officers of the Federal Judicial Service, as per law.
- Appointment Process:
The Public Service Commission recommends new permanent appointments to gazetted posts or promotions within the Federal Judicial Service. They conduct open and internal competitive examinations for this purpose.
- Composition of the Judicial Service Commission:
- The Judicial Service Commission consists of: (Composition)
- Chief Justice (Chairperson)
- Federal Minister for Law and Justice
- Senior-most Judge of the Supreme Court
- Chairperson of the Public Service Commission
- Attorney General.
The Judicial Service Commission's other functions, duties, powers, and procedures are defined by federal law.
E. Supreme court as court of record in Nepal. (Article 128(2)).
The Supreme Court shall be a court of record because,
- All courts and judicial bodies shall, be under the Supreme Court.
- The Supreme Court shall have the final authority to interpret this Constitution and laws.
F. Role of judiciary to protect and promote Human Rights in Nepal and South Asia:
Judiciary plays important role to protect and promote HRs through:
- Judicial Review:
- Enforcement of Fundamental Rights:
- Public Interest Litigation (PIL):
- Landmark Judgments:
- Protection of Vulnerable Groups:
- Judicial Activism:
- Accountability Mechanisms:
- International Human Rights Norms:
- Promotion of Rule of Law:
- Legal Reforms and Recommendations:
Cases:
1. Surya Prasad Dhungel Vs. Godawri Marbel Industry Case.
Supreme court of Nepal put emphasis on right to environment and held that violation of right to environment is the violation of right to life.
2. Advocate lila Mani poudel Vs Secretariat of cabinet ministry and others.
In this case, Supreme court of Nepal stated that, ‘the court has right as well as role to see writ petitions if FR have been violated.
Indian Cases:
3. Minarva Mills V union of India:
Supreme court held that directive principles should be treated as Fundamental rights and Human rights.
4. M.C Mehta Vs Union of India:
Court provides that to protect Fundamental human rights of the poor, even a piece of written paper is accepted as PIL.
5. Bandhuwa Muti morcha Vs Union of India:
Supreme court held that Fundamental or human rights of disadvantaged people must be protected.
Prepared and Edited By: Manish Rajak & Madhu Dahal