- Supreme Court of Nepal
The Supreme Court of Nepal is the highest
courtin the Nepalese judicial system.
The Supreme Court is composed of the Chief Justice of Nepal, fourteen Justices and ad hoc Judges. The Chief Justice is appointed by Prime Minister of Nepal on the recommendation of the Constitutional Council. He/She is appointed from among the justices having minimum three years of experience of the Supreme Court. Justices of the Supreme Court are appointed by Chief Justice of Nepal on the recommendation of the Judicial Council. The ad hoc judges are appointed by the Chief Justice on the recommendation of the Judicial Council. The Registrar and other officers of the Court are appointed by Government of Nepal under the recommendation of the Judicial Service Commission.
Justices of the Supreme Court are appointed from among the judges who have worked for seven years as the judges of the Court of Appeal, or Gazetted first class officer of Judicial Service for minimum 12 years or have worked as any Senior Advocate or Advocate with minimum practicing experience of fifteen years, or a distinguished jurist who has worked for minimum 15 years in the judicial or legal field.
Justices of the Supreme Court hold their office till the age of sixty-five. They may be removed through an impeachment motion passed by a two third majority of the House of Representatives on the ground of incompetence or bad moral conduct or dishonesty. The Chief Justice may resign from office at any time by submitting resignation to the council of ministers and other justices may resign from their office by submitting their resignation to the Chief Justice.
The Registrar is authorized to be worked as an administrative in charge of the Supreme Court. He/She is supposed to be worked according to general guidance of the Chief Justice of Nepal. All the administrative staff use the power delegated by the Registrar.
Powers and Functions
The Supreme Court has both judicial and extra judicial powers. The judicial powers include the power of hearing the writ petitions, the power of hearing appeal, the power of reviewing its own judgments, the power to revise the judgments delivered by the Court of Appeal and the power to try certain cases (as specified by law). The Supreme Court also has power of making rules, administration of all the Court of Appeal and all the District Courts, formulating policies and programs regarding judicial administration, managerial reforms in various courts, the publication and dissemination of the Supreme Court decisions.
The judicial power of the Supreme Court is being used through the composition of the various types of benches. They are called as Single Bench, Division Bench, Full Bench and Special Bench. Jurisdictions of the different benches are as follows;
The Special Bench is composed of three or more justices. The jurisdiction of the special bench is to hear the petition registered under the provision of Article 107(1) of the constitution concerning the constitutionality of the law. Further, any cases referred to special bench by the Chief Justice of Nepal are to be heard by this bench.
The Full Bench is composed of three or more justices. The jurisdiction of the full bench is to render the final decision upon the cases which have not unanimity in the decision of the devision bench or the cases which is referred to the full bench because of presence of serious issue of interpretation of law or legal principles by division bench or by the Chief Justice. The chief justice may referred any cases to the full bench if he thinks the case is fit to be heard by the full bench.
The Bench composed by two justices is called division bench. Most of the cases run through this bench. The jurisdiction of this bench is to hear the appeal filed after the decision of the Court of Appeal, to hear the writ petition registered under the Article 107(2) of the Constitution, to make review of its own judgments and to make revision of the decision of the court of Appeal as specified by the law.
Single Bench is formed of a single justice. Prima facie hearing of the writ petition, petition filed against the interim and interlocutory order of the inferior court, petition against the order of the Registrar concerning procedure of the cases and any other application which does not falls under the jurisdiction of the special, full or division bench falls under the jurisdiction of the single bench.
The Supreme Court has judicial powers as follows;
Power of Hearing Writ Petitions
The Supreme Court is the guardian of the Constitution. Basically, it is responsible for the protection of human rights of the people. Legal and judicial remedies against the violation of the fundamental rights are provided under the original writ jurisdiction of the Supreme Court. The writ jurisdiction is commonly known as extraordinary jurisdiction of the Court.
Article 107 of the Constitution has empowered the Supreme Court to issue writs (applicable to the respective issues) such as the writs of Habeas Corpus, Mandamus, Certiorari, Quo-warranto and Prohibition. The writs are issued particularly in the following conditions:
* If any illegal restriction is made against the fundamental rights of the people,
* If any legal remedy is not available under any law or the remedy available under the law is inadequate or ineffective, and
* If any issue relating to public rights or interest requires constitutional or legal resolution.
power to decide constitutionality of the law
Article 107(1) of the constitution confers power upon the Supreme Court to declare void either ab initio or from the date of its decision any statutory provision on the ground of inconsistency with the constitution or unreasonable restriction on the enjoyments of the fundamental rights of the citizen
Power of Hearing Appeal
Article 107 (3) of the Constitution has given the power to hear appeals (as specified by the law) against the final decisions of the Court of Appeal. According to section 9 of the Administration of Justice Act, 1991 the following cases fall under the appellate jurisdiction of the Supreme Court.
* Cases decided by the Court of Appeal under their original jurisdiction,
* If the Court of Appeal overrules the decision of the District Court with a substantially different effect,
* Cases in which more than 10 years of imprisonment was imposed by a subordinate court, and
* Cases referred to the Supreme Court by the Court of Appeal (i.e. in cases of sentencing for life imprisonment or life imprisonment with confiscation of properties).
Power to Review its Own Judgments
Article 107 (4) of the Constitution has given the power to review its own judgments as specified by the law. According to section 11 of the Administration of Justice Act, 1991 judgments delivered by the Supreme Court may be reviewed on any of the following grounds.
* If any new evidence which could make substantial difference to the decision is found after the delivery of judgment.
* If the decision is found contrary to the precedent or legal principle established by the Supreme Court.
Power to Revise the Decisions of the Court of Appeal
Under section 12 of the Administration of Justice Act, 1991 the Supreme Court has power to revise the final decisions (which are non appeal-able) of the Court of Appeal on the following grounds.
* In case there is a serious error in the interpretation of any provision of the Constitution or any other law,
* In case the decision is made in contrary to the precedents or it has been misinterpreted,
* If public (right of) property was affected due to misinterpretation of evidence (in the process of formulating decision) and,
* If substantive difference in the judgment is deemed to have occurred due to the absence of proper legal representation, in a case where a party is a minor or woman or old or disabled or mentally incapacitated person.
Power to try Certain Cases
In accordance with Article 107 (3) of the Constitution and section 7 of the Supreme Court Act, the Supreme Court could try certain cases. Exceptionally this power is limited to hear the cases relating to contempt of the Supreme Court and its subordinate courts. Article 102(3) and s.7(1) of the Supreme Court Act 1991 has provided that the authority to penalize wrongdoers with an amount of up to NRs. 10,000 or imprisonment of maximum period of one year or both if the court finds an accused is in contempt .
Extra Judicial Powers
The extra judicial powers of the Supreme Court are as follows:
Power of Making Rules
The Supreme Court has power to make rules on the procedural, managerial and administrative functions of the Supreme Court, the Court of Appeal and the District Courts. Section 11 of the Supreme Court Act, 1991 has authorized the Supreme Court to make rules relating to the Supreme Court, while section 31 of the Administration of Justice Act has empowered it to make rules relating to the Court of Appeal and the District Courts. Under the said statutory authority the Supreme Court has issued the Supreme Court Rules and Court of Appeal Rules in 1991 and the District Court Rules in 1995. Rule making power is exercised by the Full Court of the Supreme Court.
Power to Formulate Judicial Policies
Full Court is the principal policy making body of the Nepalese judiciary which consist of all the justices of the Supreme Court. On many occasions the Supreme Court has formulated policies and developed plans and programmes towards judicial reforms and court management system. Besides, the Chief Justice and the Registrar have also key role in formulating judicial policies.
The Full Court
The Full Court is commonly known as the meeting of all the justices present including the Chief Justice. It is a high level policy making body of the judiciary. The Full Court is basically responsible for the formulation of policies relating judicial administration. Policy decisions formulated by the Full Court are basically carried out by the Registrar (ex-officio secretary of the Full Court) of the Supreme Court. Major functions of the Full Court are as follows :
* To recommend new legislation relating to the administration of justice and any amendment or change required in such law,
* To consider the policy issues relating to administration of justice and court management,
* To approve the annual report of the Supreme Court,
* To award the title of Senior Advocate, and
* To consider on matters referred to the Full Court either by the Chief Justice or any of the Justices.
further information of Nepalese Judiciary see www.supremecourt.gov.np
[http://supremecourt.gov.np Official website of The Supreme court of Nepal]
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