Posted by: dimag kharab April 11, 2011
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PART 10
JUDICIARY
100. 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, the laws and the recognized principles of justice.
(2) Following the concept, norms and values of the independent judiciary, and bearing in mind the aspiration of the people's movement and democracy, the judiciary of Nepal shall be committed to this Constitution.
101. Courts: (1) There shall be the following courts in Nepal:
(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 constitute and establish special types of courts, judicial institutions or tribunals for the purpose of proceeding and hearing special types of cases.
Provided that no court, judicial institution or tribunal shall be constituted for the purpose of hearing a particular case.
102. Supreme Court: (1) The Supreme Court shall be the highest court in the judicial hierarchy.
(2) All other courts and judicial institutions of Nepal, other than the Constituent Assembly Court, shall be under the Supreme Court. The Supreme Court may inspect, supervise and give directives to its subordinate courts and other judicial institutions.
(3) The Supreme Court shall be a Court of Record. It may initiate proceedings and impose penalties in accordance with law for contempt of itself and of its subordinate courts or judicial institutions.
(4) Except on the matters which fall under the jurisdiction of the Constituent Assembly Court, the Supreme Court shall have the final power to interpret this Constitution and other prevailing laws.
(5) 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
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increase in the number of cases in the Supreme Court, ad hoc Judges may be appointed for a fixed term.
103. Appointment and Qualifications of Judges of the Supreme Court: (1) The Prime Minister shall appoint the Chief Justice of the Supreme Court on the recommendation of the Constitutional Council, and the Chief Justice shall appoint other Judges of the Supreme Court on the recommendation of the Judicial Council. The tenure of office of the Chief Justice shall be six years from the date of appointment, pursuant to sub- clause (b) of clause (1) of Article 105.
(2) Any person who has worked as a Judge of the Supreme Court for at least three 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 seven years, or has worked as a gazetted first class or above of the judicial service for at least twelve years, or has practised law for at least fifteen years as a law graduate advocate or senior advocate, or 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.
(4) If the office of the Chief Justice becomes vacant, or the Chief Justice is unable to carry out the duties of his/her office due to illness or any other reason, or he/she cannot be present in office due to a leave of absence or his/her being outside of Nepal, the senior-most Judge shall act as the Acting Chief Justice.
(5) The Chief Justice and other Judges of the Supreme Court shall hold offices until they attained the age of sixty five years.
104. Conditions of Service and Privileges of the Chief Justice and Judges: (1) The Chief Justice of the Supreme Court and the permanent Judges of the Supreme Court who have worked minimum for five years are entitled to pension after retirement from their service as provided in law.
(2) Except as otherwise provided in this Constitution, the remuneration, leave, allowances, pension and other conditions of service of the Chief Justice and other Judges of the Supreme Court shall be regulated for in the law.
(3) Notwithstanding anything contained in clauses (1) and (2) above, the Chief justice or Judges of the Supreme Court who has been removed from his/her office through impeachment, shall not be entitled to any gratuities and pensions.
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(4) The remuneration, privileges and other conditions of service of the Chief Justice and other Judges of the Supreme Court, shall not be altered to their disadvantage.
105. Removal of the Chief Justice and Judges of the Supreme Court: (1) The Chief Justice or other Judges of the Supreme Court shall be deemed to have been relieved from their office in the following conditions:
a) if the Chief Justice submits his/her resignation before the Council of Ministers and a Judge submits his/her resignation before the Chief Justice,
b) if he/she attains the age of sixty five years. c) if an impeachment resolution is passed by the Legislature-Parliament, d) if he/she dies.
(2) A proposal of impeachment may be presented before the Legislature-Parliament against the Chief Justice or any other Judges on the ground that they are unable to perform their duties for the reasons of incompetence, misbehaviour, failure to discharge the duties of his/her office in good faith, physical or mental condition, and if by a two-thirds majority of the total number of its members existing for the time being passes the resolution, he/she shall ipso facto be relieved from his/her office.
(3) The Chief Justice or the Judge, against whom impeachment proceedings are being initiated pursuant to clause (2) above, shall not perform the duties of his/her office until the proceedings are final.
106. Chief Justice or Judges not to be Engaged in any other Assignment: (1) The Chief Justice or Judges of the Supreme Court shall not be engaged in or deputed to any assignment except that in the post of a Judge.
Provided that the Government of Nepal may, in consultation with the Judicial Council, depute the Chief Justice or a Judge of the Supreme Court to work concerning judicial inquiry or to legal or judicial investigation or research, for a specified period or to any other work of national concern.
(2) Any person who has once held the office of Chief Justice or Judges of the Supreme Court shall not be eligible for appointment in any Government Service, except for the post as provided by Sub-clause (a) of
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clause (1) of Article 131, nor shall he/she be entitled to practice law before any office or court.
107. 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 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 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 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 interfere, under this clause with the proceedings of the Legislature-Parliament concerning the violation of privileges and penalties imposed there to.
(3) The Supreme Court shall have original and appellate jurisdiction, conformation of verdicts (sadhak), review of the cases or hearing of petitions as defined by law.
(4) The Supreme Court may review its own judgments or final orders subject to the conditions and in the circumstances prescribed by law. In such review, it shall be done by the judges who were not engaged earlier in making the said judgment.
(5) Other powers and procedures of the Supreme Court shall be as prescribed by law.
108. Establishment, Management and Jurisdiction of Appellate Courts and District Courts: The establishment and management of the Appellate Courts, District Courts and other courts and judicial institutions
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subordinate to the Supreme Court shall be determined by law subject to this Constitution.
109. Appointment, Qualifications and Conditions of Services and
Privileges of the Judges of Appellate Courts and Districts Courts: (1) The Chief Justice 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.
(2) Any Nepali citizen, who has a Bachelor Degree in law and has worked as a District Judge or worked in any post of gazetted first class of the Judicial Service for a period of at least seven years; or has practised law having graduate degree in law as a senior advocate or advocate for at least ten years; or has taught law or conducted research thereon, or has worked in any other field of law or justice for at least ten years, is eligible for appointment as Chief Judge or other Judge of an Appellate Court.
(3) Any Nepali citizen, who has a Bachelor's Degree in law and has worked for at least three years as a gazetted second class officer in the Judicial Service, or has practiced law for at least eight years as a law graduate advocate, is eligible for appointment as a District Judge.
(4) In appointing a law graduate advocate for the post of District Judge in accordance with clause (3) above, only the person, who has passed the written and oral examination conducted by the Judicial Council, shall be appointed. Such examination system and other procedures shall be as prescribed by law.
(5) The Judicial Council shall consider, inter alia, qualification, capacity, experience, dedication and contribution to justice, reputation in public life, high moral character of a person and make recommendations accordingly for appointment to the post of judge of the Appellate Court and the District Court.
(6) 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.
(7) The remuneration, allowances, pension, leave, gratuity, privileges and other conditions of service of the Chief Judge and other Judges of an Appellate Court and the judges of District Court shall be as determined by law.
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(8) The remuneration, privileges and conditions of service of the Chief Judge, other Judges of Appellate Court and the Judges of the District Court shall not be altered to their disadvantage.
(9) Notwithstanding anything contained in clause (7) above, a Judge of the Appellate Court and the District Court, who is removed from his/her office in accordance with Sub-clause (c) of clause (10), shall not be entitled to any gratuities and pension.
(10) The Judges of Appellate Court or District Court shall be removed from their office in the following circumstances:
a) if he/she submits written resignation before the Chief Justice, b) if he/she attains the age of sixty three years, c) if he/she is removed by the Chief Justice in accordance with a
decision of the Judicial Council for his/her removal for reasons of incompetence, misbehavior or failure to discharge the duties of his/her office in good faith, incapable to discharge the duties due to physical or mental condition, or deviation to justice.
The Judge of the Appellate Court and District Court who is facing charge pursuant to this sub-clause shall be given a reasonable opportunity to defend himself/herself; and for this purpose, the Judicial Council may constitute a "Committee of Inquiry" for the purposes of recording the statement of the Judge, collecting evidence and submitting its findings thereof. The working procedure of the Committee shall be as regulated by law.
d) if he/she dies. (11) The Judge of the Appellate Court or District Court,
against whom such proceedings are being initiated pursuant to sub-clause (c) of clause (10) above, shall not perform the duties of his/her office until the proceedings are final.
110. Judges of the Appellate Court and District Court not to be
Transferred to, or Engaged in any other Assignment: (1) A judge shall not be transferred to, engaged in or deputed to any assignment except that of a Judge.
Provided that the Government of Nepal may, in consultation with the Judicial Council, depute for a specified period a Judge of the Appellate Court and the District Court to work concerning judicial inquiry, or to any legal or judicial investigation or research, or to any other work of national concern. With regard to the Judges of the Appellate
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Court or District Court, the Chief Justice, in consultation with the Judicial Council, may depute them to the above mentioned assignments, including election works.
(2) The Chief Justice, on the recommendation of the Judicial Council, may transfer the Judges of the Appellate Court or District Court from one court to another.
(3) The Chief Justice may send a judge of any Court on a deputation for a specified period to work as judge of another court of similar level taking into consideration the number of cases and subject matter of the cases to be resolved.
(4) The Supreme Court may authorize a judge, who is designated in one region, to issue preliminary or interim orders through electronic media or other mediums, in the course of dealing with cases, to another nearest court of similar level taking into consideration the geographical situation, as provided for in the law.
111. Transfer of Cases: If the Supreme Court is satisfied that the dispensation of justice on a case registered in a court may be affected if heard by that court, the Supreme Court may order another court of similar level to hear such case.
112. Responsibility of the Chief Justice: The Chief Justice shall have the ultimate responsibility to make the administration of justice effective, and for this purpose he/she may, subject to this Constitution and other laws, give necessary instructions to the Supreme Court and other subordinate courts.
113. 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 followings as its Chairperson and members:-
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(a) the Chief Justice,
(b) the Minister of Justice,
(c) a senior advocate, or an advocate who has at least twenty years of experience, to be appointed by the Chief Justice on the recommendation of the Nepal Bar Association,
(d) a person to be nominated by the Prime Minister from amongst the jurists,
(e) the senior-most Judge of the Supreme Court,
Chairperson member
member
member member
Explanation: For the purpose of this Part, the word "Minister" shall mean and include a Minister of State who takes separate responsibility of the Ministry.
(2) The term of office of the member referred to in sub-clauses (c) and (d) of clause (1) above, shall be four years and their remuneration and privileges shall be equal to that of the Judge of the Supreme Court.
(3) The member referred to in sub-clause (c) and (d) of clause (1) above, may be removed from his/her office on the same grounds and in the same manner as has been set forth for the removal of a Judge of the Supreme Court.
(4) The Chairperson and members of the Judicial Council may obtain and study the documents and files of the case related to the complaint lodged against a judge, and may furnish information thereof to the Judicial Council.
(5) The Judicial Council may, while carrying out preliminary investigation on a complaint received against a judge constitute a Committee of Inquiry, if it has found that a detailed investigation by the expert is required.
(6) The other functions, duties and powers of the Judicial Council shall be as determined by law.
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114. Judicial Service Commission: (1) In appointing, transferring or promoting the Gazetted Officers of the Judicial Service or in taking departmental action concerning such officers in accordance with law, the Government of Nepal shall act on the recommendation of the Judicial Service Commission.
Provided that, 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, the Government of Nepal shall act on the recommendation of the Public Service Commission.
(2) The Judicial Service Commission shall consist of the following as its Chairperson and members:-
a) the Chief Justice b) the Minister of Justice, c) the Senior-most Judge of the Supreme Court, d) the Chairperson of the Public Service Commission, e) the Attorney-General,
Chairperson member
member member member
(3) Other functions, duties, powers and procedures of the Judicial Service Commission shall be as determined by law.
115. Duty to Extend Cooperation: It shall be the duty of the Government of Nepal and the offices and officials subordinate to the Government of Nepal to act in aid of the Supreme Court and other courts in carrying out the functions of dispensation of justice.
116. Orders and Decisions of Courts to be Binding: (1) All shall abide by the orders and decisions made in the course of the 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 the hearing of a suit shall be binding on the Government of Nepal and all offices and courts.
117. Annual Report: (1) Each year, the Supreme Court shall submit its annual report to the Prime Minister, and the Prime Minister shall make arrangement to submit such reports before Legislature-Parliament.
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(2) The annual report to be submitted in accordance with clause (1) above shall contain inter alia the following particulars:-
a) the quantitative descriptions of the cases registered in the Supreme Court and other subordinate courts,
b) the number of disposed and pending cases, out of the of cases registered as stated in sub-clause (a)above, and the reason for pending thereon,
c) details of new precedents propounded by the Supreme Court, d) number of cases reviewed by the Supreme Court, e) description of the judicial comment made by the Supreme
Court, if any, on the maters of competency regarding the
conduct of judicial duty of judge of a court subordinate to it, f) amount of fines and penalties reimbursed, g) description on the implementation of a decision, h) the budget appropriated to the Supreme Court and
subordinate courts, and statement of expenditures.
(3) While submitting the annual report pursuant to clause (1) above, the Supreme Court shall also include the details of the works performed by the Judicial Council and the Judicial Service Commission.
118. Constituent Assembly Court: (1) A Constituent Assembly Court shall be constituted to resolve the complaints regarding election.
(2) The constitution, jurisdiction and other matters of the Constituent Assembly Court pursuant to clause (1) above, shall be as determined by law.
(3) Notwithstanding anything contained elsewhere in this Constitution, unless a petition is filed in the manner prescribed by law in the court prescribed under clause (1) above, no question shall be raised in any court regarding any election to the member of Constituent Assembly.
(4) Notwithstanding anything contained elsewhere in this Constitution, once the process of election for the Constituent Assembly has commenced, no question shall be raised in any court that hinders the election.
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PART 11
COMMISSION FOR THE INVESTIGATION OF ABUSE OF AUTHORITY
119. Commission for the Investigation of Abuse of Authority: (1) There shall be a commission to be called the Commission for the Investigation of Abuse of Authority of Nepal consisting of a Chief Commissioner and a number of other Commissioners as may be required. If apart from the Chief Commissioner other Commissioners are appointed, the Chief Commissioner shall act as Chairperson of the Commission for the Investigation of Abuse of Authority.
(2) The Prime Minister shall, on the recommendation of the Constitutional Council, appoint the Chief Commissioner and other Commissioners.
(3) Subject to the proviso under sub-clause (a) of clause (7), the term of office of the Chief Commissioner and other Commissioners shall be six years from the date of appointment.
Provided that:
(a) if before the expiry of his/her term, the Chief Commissioner or a Commissioner attains the age of sixty five, he/she shall be retired.
(b) the Chief Commissioner or a Commissioner may be removed from his/her office on the same grounds and in the same manner as has been set forth for the removal of a Judge of the Supreme Court.
(4) The office of the Chief Commissioner or a Commissioner shall be deemed vacant under the following circumstances:-
(a) if he/she submits a written resignation to the Prime Minister,
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(b)if pursuant to clause (3), his/her term expires or he/she is removed from his/her office,
c) if he/she dies.
5) No person shall be eligible to be appointed as the Chief Commissioner or a Commissioner unless he/she possesses the following qualifications:-
(a) holds a Bachelor's Degree from a university recognized by the Government of Nepal,
(b) is not a member of any political party immediately before the appointment,
(c)has at least twenty years experience in the field of accounting, revenue, engineering, law, development or research, and a distinguished person,
(d) has attained of forty five years of age, and
(e) has possessed a high moral character.
(6) The remuneration and other conditions of service of the Chief Commissioner and the Commissioners shall be as determined by law. The remuneration and other conditions of service of the Chief Commissioner and the Commissioners shall not, so long as they hold office, be altered to their disadvantage.
(7) A person once appointed as the Chief Commissioner or Commissioner shall not be eligible for appointment in other Government Service.
Provided that:
a) nothing in this Clause shall be deemed to be a bar to appointment of a Commissioner of the Commission for the Investigation of Abuse of Authority as its Chief Commissioner, and when a Commissioner is so appointed as the Chief Commissioner, his/her term of office shall be computed as to include his/her tenure as Commissioner as well,
b) nothing in this clause shall be deemed to be a bar to appointment to any position of a political nature, or to any position which has the responsibility of making investigations, inquiries or findings on any subject, or to any position which has the responsibility of submitting advice, opinions or recommendations after carrying out studies or research on any subject.
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120. Functions, Duties and Powers of the Commission for the Investigation
of Abuse of Authority: (1) The Commission for the Investigation of Abuse of Authority may, in accordance with law, conduct or cause to be conducted inquiries into, and investigations of, improper conduct or corruption by a person holding any public office.
Provided that this Clause shall not be applicable to any official in relation to whom this Constitution itself separately provides for such action, and to any officials to whom other law has separately made special provision.
(2) An inquiry and investigation may be conducted or cause to be conducted against any officials of the Constitutional Bodies removed from their office upon passing an impeachment resolution on the ground of misbehaviour, any Judges removed by the Judicial Council on similar charges, and the person, to be prosecuted under the Army Act, after they are removed from offices, in accordance with the law.
(3) If the Commission for the Investigation of Abuse of Authority finds, upon inquiry or investigation carried out pursuant to clause (1) above, that any person holding any public office has misused his authority by committing an act which is defined by law as improper conduct, it may admonish such person, or forward a recommendation to the concerned authority in writing for taking departmental action or any other necessary action as prescribed by law.
(4) If the Commission for the Investigation of Abuse of Authority finds, upon inquiry or investigation carried out pursuant to clause (1) above, that a person holding any public office has committed an act which is defined by law as corrupt, it may lodge or caused to be lodged a case against such person or any other person involved therein in a court with jurisdiction in accordance with law.
(5) If the Commission for the Investigation of Abuse of Authority finds, upon inquiry or investigation carried out pursuant to clause (1) above, that the nature of the work to be carried out by the person holding any public office falls under the jurisdiction of another authority or bodies, it may forward a recommendation to the concerned authority or body in writing for necessary action.
6) Subject to this Constitution, other functions, duties, powers and procedures of the Commission for the Investigation of Abuse of Authority shall be as determined by law.
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7) The Commission for the Investigation of Abuse of Authority may delegate any of its powers, functions and duties relating to the inquiry, investigation or lodging cases, to the Chief Commissioner, Commissioner or any employee of the Government of Nepal to be exercised and complied with the condition as to specified.
121. Annual Report: 1) The Commission for the Investigation of Abuse of Authority shall submit an annual report to the Prime Minister on the works it has performed in accordance with this Constitution, and the Prime Minister shall make arrangement to submit such reports before Legislature-Parliament.
(2) The annual report to be submitted in accordance with clause (1) above shall contain inter alia the total number of complaints lodged during the year at the Commission for the Investigation of Abuse of Authority; the number of cases, after completing the investigation, cases filed at the court with jurisdiction in accordance with law, and closed thereby; the number of cases, relating to improper conduct, forwarded to admonish the person, or making recommendations in writing for taking departmental or any other necessary action; the achievement obtained in preventing corruption and the prescription for the improvement to be carried out in the future.
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JUDICIARY
100. 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, the laws and the recognized principles of justice.
(2) Following the concept, norms and values of the independent judiciary, and bearing in mind the aspiration of the people's movement and democracy, the judiciary of Nepal shall be committed to this Constitution.
101. Courts: (1) There shall be the following courts in Nepal:
(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 constitute and establish special types of courts, judicial institutions or tribunals for the purpose of proceeding and hearing special types of cases.
Provided that no court, judicial institution or tribunal shall be constituted for the purpose of hearing a particular case.
102. Supreme Court: (1) The Supreme Court shall be the highest court in the judicial hierarchy.
(2) All other courts and judicial institutions of Nepal, other than the Constituent Assembly Court, shall be under the Supreme Court. The Supreme Court may inspect, supervise and give directives to its subordinate courts and other judicial institutions.
(3) The Supreme Court shall be a Court of Record. It may initiate proceedings and impose penalties in accordance with law for contempt of itself and of its subordinate courts or judicial institutions.
(4) Except on the matters which fall under the jurisdiction of the Constituent Assembly Court, the Supreme Court shall have the final power to interpret this Constitution and other prevailing laws.
(5) 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
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increase in the number of cases in the Supreme Court, ad hoc Judges may be appointed for a fixed term.
103. Appointment and Qualifications of Judges of the Supreme Court: (1) The Prime Minister shall appoint the Chief Justice of the Supreme Court on the recommendation of the Constitutional Council, and the Chief Justice shall appoint other Judges of the Supreme Court on the recommendation of the Judicial Council. The tenure of office of the Chief Justice shall be six years from the date of appointment, pursuant to sub- clause (b) of clause (1) of Article 105.
(2) Any person who has worked as a Judge of the Supreme Court for at least three 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 seven years, or has worked as a gazetted first class or above of the judicial service for at least twelve years, or has practised law for at least fifteen years as a law graduate advocate or senior advocate, or 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.
(4) If the office of the Chief Justice becomes vacant, or the Chief Justice is unable to carry out the duties of his/her office due to illness or any other reason, or he/she cannot be present in office due to a leave of absence or his/her being outside of Nepal, the senior-most Judge shall act as the Acting Chief Justice.
(5) The Chief Justice and other Judges of the Supreme Court shall hold offices until they attained the age of sixty five years.
104. Conditions of Service and Privileges of the Chief Justice and Judges: (1) The Chief Justice of the Supreme Court and the permanent Judges of the Supreme Court who have worked minimum for five years are entitled to pension after retirement from their service as provided in law.
(2) Except as otherwise provided in this Constitution, the remuneration, leave, allowances, pension and other conditions of service of the Chief Justice and other Judges of the Supreme Court shall be regulated for in the law.
(3) Notwithstanding anything contained in clauses (1) and (2) above, the Chief justice or Judges of the Supreme Court who has been removed from his/her office through impeachment, shall not be entitled to any gratuities and pensions.
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(4) The remuneration, privileges and other conditions of service of the Chief Justice and other Judges of the Supreme Court, shall not be altered to their disadvantage.
105. Removal of the Chief Justice and Judges of the Supreme Court: (1) The Chief Justice or other Judges of the Supreme Court shall be deemed to have been relieved from their office in the following conditions:
a) if the Chief Justice submits his/her resignation before the Council of Ministers and a Judge submits his/her resignation before the Chief Justice,
b) if he/she attains the age of sixty five years. c) if an impeachment resolution is passed by the Legislature-Parliament, d) if he/she dies.
(2) A proposal of impeachment may be presented before the Legislature-Parliament against the Chief Justice or any other Judges on the ground that they are unable to perform their duties for the reasons of incompetence, misbehaviour, failure to discharge the duties of his/her office in good faith, physical or mental condition, and if by a two-thirds majority of the total number of its members existing for the time being passes the resolution, he/she shall ipso facto be relieved from his/her office.
(3) The Chief Justice or the Judge, against whom impeachment proceedings are being initiated pursuant to clause (2) above, shall not perform the duties of his/her office until the proceedings are final.
106. Chief Justice or Judges not to be Engaged in any other Assignment: (1) The Chief Justice or Judges of the Supreme Court shall not be engaged in or deputed to any assignment except that in the post of a Judge.
Provided that the Government of Nepal may, in consultation with the Judicial Council, depute the Chief Justice or a Judge of the Supreme Court to work concerning judicial inquiry or to legal or judicial investigation or research, for a specified period or to any other work of national concern.
(2) Any person who has once held the office of Chief Justice or Judges of the Supreme Court shall not be eligible for appointment in any Government Service, except for the post as provided by Sub-clause (a) of
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clause (1) of Article 131, nor shall he/she be entitled to practice law before any office or court.
107. 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 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 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 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 interfere, under this clause with the proceedings of the Legislature-Parliament concerning the violation of privileges and penalties imposed there to.
(3) The Supreme Court shall have original and appellate jurisdiction, conformation of verdicts (sadhak), review of the cases or hearing of petitions as defined by law.
(4) The Supreme Court may review its own judgments or final orders subject to the conditions and in the circumstances prescribed by law. In such review, it shall be done by the judges who were not engaged earlier in making the said judgment.
(5) Other powers and procedures of the Supreme Court shall be as prescribed by law.
108. Establishment, Management and Jurisdiction of Appellate Courts and District Courts: The establishment and management of the Appellate Courts, District Courts and other courts and judicial institutions
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subordinate to the Supreme Court shall be determined by law subject to this Constitution.
109. Appointment, Qualifications and Conditions of Services and
Privileges of the Judges of Appellate Courts and Districts Courts: (1) The Chief Justice 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.
(2) Any Nepali citizen, who has a Bachelor Degree in law and has worked as a District Judge or worked in any post of gazetted first class of the Judicial Service for a period of at least seven years; or has practised law having graduate degree in law as a senior advocate or advocate for at least ten years; or has taught law or conducted research thereon, or has worked in any other field of law or justice for at least ten years, is eligible for appointment as Chief Judge or other Judge of an Appellate Court.
(3) Any Nepali citizen, who has a Bachelor's Degree in law and has worked for at least three years as a gazetted second class officer in the Judicial Service, or has practiced law for at least eight years as a law graduate advocate, is eligible for appointment as a District Judge.
(4) In appointing a law graduate advocate for the post of District Judge in accordance with clause (3) above, only the person, who has passed the written and oral examination conducted by the Judicial Council, shall be appointed. Such examination system and other procedures shall be as prescribed by law.
(5) The Judicial Council shall consider, inter alia, qualification, capacity, experience, dedication and contribution to justice, reputation in public life, high moral character of a person and make recommendations accordingly for appointment to the post of judge of the Appellate Court and the District Court.
(6) 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.
(7) The remuneration, allowances, pension, leave, gratuity, privileges and other conditions of service of the Chief Judge and other Judges of an Appellate Court and the judges of District Court shall be as determined by law.
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(8) The remuneration, privileges and conditions of service of the Chief Judge, other Judges of Appellate Court and the Judges of the District Court shall not be altered to their disadvantage.
(9) Notwithstanding anything contained in clause (7) above, a Judge of the Appellate Court and the District Court, who is removed from his/her office in accordance with Sub-clause (c) of clause (10), shall not be entitled to any gratuities and pension.
(10) The Judges of Appellate Court or District Court shall be removed from their office in the following circumstances:
a) if he/she submits written resignation before the Chief Justice, b) if he/she attains the age of sixty three years, c) if he/she is removed by the Chief Justice in accordance with a
decision of the Judicial Council for his/her removal for reasons of incompetence, misbehavior or failure to discharge the duties of his/her office in good faith, incapable to discharge the duties due to physical or mental condition, or deviation to justice.
The Judge of the Appellate Court and District Court who is facing charge pursuant to this sub-clause shall be given a reasonable opportunity to defend himself/herself; and for this purpose, the Judicial Council may constitute a "Committee of Inquiry" for the purposes of recording the statement of the Judge, collecting evidence and submitting its findings thereof. The working procedure of the Committee shall be as regulated by law.
d) if he/she dies. (11) The Judge of the Appellate Court or District Court,
against whom such proceedings are being initiated pursuant to sub-clause (c) of clause (10) above, shall not perform the duties of his/her office until the proceedings are final.
110. Judges of the Appellate Court and District Court not to be
Transferred to, or Engaged in any other Assignment: (1) A judge shall not be transferred to, engaged in or deputed to any assignment except that of a Judge.
Provided that the Government of Nepal may, in consultation with the Judicial Council, depute for a specified period a Judge of the Appellate Court and the District Court to work concerning judicial inquiry, or to any legal or judicial investigation or research, or to any other work of national concern. With regard to the Judges of the Appellate
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Court or District Court, the Chief Justice, in consultation with the Judicial Council, may depute them to the above mentioned assignments, including election works.
(2) The Chief Justice, on the recommendation of the Judicial Council, may transfer the Judges of the Appellate Court or District Court from one court to another.
(3) The Chief Justice may send a judge of any Court on a deputation for a specified period to work as judge of another court of similar level taking into consideration the number of cases and subject matter of the cases to be resolved.
(4) The Supreme Court may authorize a judge, who is designated in one region, to issue preliminary or interim orders through electronic media or other mediums, in the course of dealing with cases, to another nearest court of similar level taking into consideration the geographical situation, as provided for in the law.
111. Transfer of Cases: If the Supreme Court is satisfied that the dispensation of justice on a case registered in a court may be affected if heard by that court, the Supreme Court may order another court of similar level to hear such case.
112. Responsibility of the Chief Justice: The Chief Justice shall have the ultimate responsibility to make the administration of justice effective, and for this purpose he/she may, subject to this Constitution and other laws, give necessary instructions to the Supreme Court and other subordinate courts.
113. 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 followings as its Chairperson and members:-
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(a) the Chief Justice,
(b) the Minister of Justice,
(c) a senior advocate, or an advocate who has at least twenty years of experience, to be appointed by the Chief Justice on the recommendation of the Nepal Bar Association,
(d) a person to be nominated by the Prime Minister from amongst the jurists,
(e) the senior-most Judge of the Supreme Court,
Chairperson member
member
member member
Explanation: For the purpose of this Part, the word "Minister" shall mean and include a Minister of State who takes separate responsibility of the Ministry.
(2) The term of office of the member referred to in sub-clauses (c) and (d) of clause (1) above, shall be four years and their remuneration and privileges shall be equal to that of the Judge of the Supreme Court.
(3) The member referred to in sub-clause (c) and (d) of clause (1) above, may be removed from his/her office on the same grounds and in the same manner as has been set forth for the removal of a Judge of the Supreme Court.
(4) The Chairperson and members of the Judicial Council may obtain and study the documents and files of the case related to the complaint lodged against a judge, and may furnish information thereof to the Judicial Council.
(5) The Judicial Council may, while carrying out preliminary investigation on a complaint received against a judge constitute a Committee of Inquiry, if it has found that a detailed investigation by the expert is required.
(6) The other functions, duties and powers of the Judicial Council shall be as determined by law.
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114. Judicial Service Commission: (1) In appointing, transferring or promoting the Gazetted Officers of the Judicial Service or in taking departmental action concerning such officers in accordance with law, the Government of Nepal shall act on the recommendation of the Judicial Service Commission.
Provided that, 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, the Government of Nepal shall act on the recommendation of the Public Service Commission.
(2) The Judicial Service Commission shall consist of the following as its Chairperson and members:-
a) the Chief Justice b) the Minister of Justice, c) the Senior-most Judge of the Supreme Court, d) the Chairperson of the Public Service Commission, e) the Attorney-General,
Chairperson member
member member member
(3) Other functions, duties, powers and procedures of the Judicial Service Commission shall be as determined by law.
115. Duty to Extend Cooperation: It shall be the duty of the Government of Nepal and the offices and officials subordinate to the Government of Nepal to act in aid of the Supreme Court and other courts in carrying out the functions of dispensation of justice.
116. Orders and Decisions of Courts to be Binding: (1) All shall abide by the orders and decisions made in the course of the 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 the hearing of a suit shall be binding on the Government of Nepal and all offices and courts.
117. Annual Report: (1) Each year, the Supreme Court shall submit its annual report to the Prime Minister, and the Prime Minister shall make arrangement to submit such reports before Legislature-Parliament.
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(2) The annual report to be submitted in accordance with clause (1) above shall contain inter alia the following particulars:-
a) the quantitative descriptions of the cases registered in the Supreme Court and other subordinate courts,
b) the number of disposed and pending cases, out of the of cases registered as stated in sub-clause (a)above, and the reason for pending thereon,
c) details of new precedents propounded by the Supreme Court, d) number of cases reviewed by the Supreme Court, e) description of the judicial comment made by the Supreme
Court, if any, on the maters of competency regarding the
conduct of judicial duty of judge of a court subordinate to it, f) amount of fines and penalties reimbursed, g) description on the implementation of a decision, h) the budget appropriated to the Supreme Court and
subordinate courts, and statement of expenditures.
(3) While submitting the annual report pursuant to clause (1) above, the Supreme Court shall also include the details of the works performed by the Judicial Council and the Judicial Service Commission.
118. Constituent Assembly Court: (1) A Constituent Assembly Court shall be constituted to resolve the complaints regarding election.
(2) The constitution, jurisdiction and other matters of the Constituent Assembly Court pursuant to clause (1) above, shall be as determined by law.
(3) Notwithstanding anything contained elsewhere in this Constitution, unless a petition is filed in the manner prescribed by law in the court prescribed under clause (1) above, no question shall be raised in any court regarding any election to the member of Constituent Assembly.
(4) Notwithstanding anything contained elsewhere in this Constitution, once the process of election for the Constituent Assembly has commenced, no question shall be raised in any court that hinders the election.
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PART 11
COMMISSION FOR THE INVESTIGATION OF ABUSE OF AUTHORITY
119. Commission for the Investigation of Abuse of Authority: (1) There shall be a commission to be called the Commission for the Investigation of Abuse of Authority of Nepal consisting of a Chief Commissioner and a number of other Commissioners as may be required. If apart from the Chief Commissioner other Commissioners are appointed, the Chief Commissioner shall act as Chairperson of the Commission for the Investigation of Abuse of Authority.
(2) The Prime Minister shall, on the recommendation of the Constitutional Council, appoint the Chief Commissioner and other Commissioners.
(3) Subject to the proviso under sub-clause (a) of clause (7), the term of office of the Chief Commissioner and other Commissioners shall be six years from the date of appointment.
Provided that:
(a) if before the expiry of his/her term, the Chief Commissioner or a Commissioner attains the age of sixty five, he/she shall be retired.
(b) the Chief Commissioner or a Commissioner may be removed from his/her office on the same grounds and in the same manner as has been set forth for the removal of a Judge of the Supreme Court.
(4) The office of the Chief Commissioner or a Commissioner shall be deemed vacant under the following circumstances:-
(a) if he/she submits a written resignation to the Prime Minister,
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(b)if pursuant to clause (3), his/her term expires or he/she is removed from his/her office,
c) if he/she dies.
5) No person shall be eligible to be appointed as the Chief Commissioner or a Commissioner unless he/she possesses the following qualifications:-
(a) holds a Bachelor's Degree from a university recognized by the Government of Nepal,
(b) is not a member of any political party immediately before the appointment,
(c)has at least twenty years experience in the field of accounting, revenue, engineering, law, development or research, and a distinguished person,
(d) has attained of forty five years of age, and
(e) has possessed a high moral character.
(6) The remuneration and other conditions of service of the Chief Commissioner and the Commissioners shall be as determined by law. The remuneration and other conditions of service of the Chief Commissioner and the Commissioners shall not, so long as they hold office, be altered to their disadvantage.
(7) A person once appointed as the Chief Commissioner or Commissioner shall not be eligible for appointment in other Government Service.
Provided that:
a) nothing in this Clause shall be deemed to be a bar to appointment of a Commissioner of the Commission for the Investigation of Abuse of Authority as its Chief Commissioner, and when a Commissioner is so appointed as the Chief Commissioner, his/her term of office shall be computed as to include his/her tenure as Commissioner as well,
b) nothing in this clause shall be deemed to be a bar to appointment to any position of a political nature, or to any position which has the responsibility of making investigations, inquiries or findings on any subject, or to any position which has the responsibility of submitting advice, opinions or recommendations after carrying out studies or research on any subject.
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120. Functions, Duties and Powers of the Commission for the Investigation
of Abuse of Authority: (1) The Commission for the Investigation of Abuse of Authority may, in accordance with law, conduct or cause to be conducted inquiries into, and investigations of, improper conduct or corruption by a person holding any public office.
Provided that this Clause shall not be applicable to any official in relation to whom this Constitution itself separately provides for such action, and to any officials to whom other law has separately made special provision.
(2) An inquiry and investigation may be conducted or cause to be conducted against any officials of the Constitutional Bodies removed from their office upon passing an impeachment resolution on the ground of misbehaviour, any Judges removed by the Judicial Council on similar charges, and the person, to be prosecuted under the Army Act, after they are removed from offices, in accordance with the law.
(3) If the Commission for the Investigation of Abuse of Authority finds, upon inquiry or investigation carried out pursuant to clause (1) above, that any person holding any public office has misused his authority by committing an act which is defined by law as improper conduct, it may admonish such person, or forward a recommendation to the concerned authority in writing for taking departmental action or any other necessary action as prescribed by law.
(4) If the Commission for the Investigation of Abuse of Authority finds, upon inquiry or investigation carried out pursuant to clause (1) above, that a person holding any public office has committed an act which is defined by law as corrupt, it may lodge or caused to be lodged a case against such person or any other person involved therein in a court with jurisdiction in accordance with law.
(5) If the Commission for the Investigation of Abuse of Authority finds, upon inquiry or investigation carried out pursuant to clause (1) above, that the nature of the work to be carried out by the person holding any public office falls under the jurisdiction of another authority or bodies, it may forward a recommendation to the concerned authority or body in writing for necessary action.
6) Subject to this Constitution, other functions, duties, powers and procedures of the Commission for the Investigation of Abuse of Authority shall be as determined by law.
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7) The Commission for the Investigation of Abuse of Authority may delegate any of its powers, functions and duties relating to the inquiry, investigation or lodging cases, to the Chief Commissioner, Commissioner or any employee of the Government of Nepal to be exercised and complied with the condition as to specified.
121. Annual Report: 1) The Commission for the Investigation of Abuse of Authority shall submit an annual report to the Prime Minister on the works it has performed in accordance with this Constitution, and the Prime Minister shall make arrangement to submit such reports before Legislature-Parliament.
(2) The annual report to be submitted in accordance with clause (1) above shall contain inter alia the total number of complaints lodged during the year at the Commission for the Investigation of Abuse of Authority; the number of cases, after completing the investigation, cases filed at the court with jurisdiction in accordance with law, and closed thereby; the number of cases, relating to improper conduct, forwarded to admonish the person, or making recommendations in writing for taking departmental or any other necessary action; the achievement obtained in preventing corruption and the prescription for the improvement to be carried out in the future.
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