Judicial Oversight and Disciplinary Actions in Nepal

Dr. Bipin Adhikari
January 2013 (Unpublished Notes)

Two important bodies in the Judiciary – the Judicial Council and Nepal Bar Council – are vested with oversight and disciplinary powers. 

Judicial Council
Nothing like a Judicial Council existed in Nepal before 1990. The 1990 Constitution provided for the Judicial Council as a constitutional body for the first time. The Constitution that existed before, i.e. the Constitution of Nepal 1962, provided for a Judicial Service Commission. This Commission recommended appointment of judges, transfer, promotion, and departmental action. All judges of the lower courts in Nepal before 1990 were appointed and treated (more or less) as civil servants. The Judicial Service Commission was built around this basic norm. The 1990 Constitution was a significant departure. It mandated that all judges should be appointed as judges according to the Constitution. It provided for the Judicial Council to make sure that judges were appointed according to this new norm on the recommendation of the Council. A separate statute was passed setting out the conditions of service of these judges.

The Interim Constitution enacted in 2007 gives continuity to this basic nature of the Judicial Council with some minor improvements. The Judicial Council continues to be led by the Chief Justice of Nepal.[1] Its members comprise of the Chief Justice, the Minister of Law, one senior-most judge of the Supreme Court (originally two), one jurist appointed by the President on the recommendation of the Prime Minister, and one senior advocate or a lawyer with at least twenty years of experience. The provision for the last member was created by the 2007 Constitution. The Council “make[s] recommendations and give[s] 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 …” The Council may, while carrying out preliminary investigation of a complaint received against a judge, constitute a Committee of Inquiry, if it has determined that a detailed investigation by an expert is required. The Judicial Council Act 1990 and Judicial Council (Procedural) Rules 1999 provide additional provisions to help implement the objective of the constitutional provision. 

To perform its role, the Council has a secretariat, which does its ground work according to its instruction. It is led by a Judicial Service special class officer. He works directly under the Council. The meetings of the Council are held as prescribed by the Chairperson. The meeting could be called on the request of any two members together. Every agenda under consideration of the meeting shall be decided on the basis of majority. In case of a tie, the Chairperson may cast a decisive vote, making the decision collective. 

The Council prepares and keeps the records of the persons who are eligible for the appointment of judges at different levels. This is done by receiving documents and information from the Supreme Court, the Ministry of Law and Justice, and the Office of the Attorney General. The Report of the Inspection of Work Performance and other details relating to the service of the judges of the Supreme Court, the Court of Appeal and District Courts and the details on work performance and other matters relating to the service of the officers of judicial service are collected from concerned courts and offices. These records are considered confidential. 

The Act provides procedures to be followed in making recommendation for the appointment of any person as a judge. The criteria suggested are competence to be appointed as a judge from the standpoint of seniority, experience, knowledge on

subject-matters, skills, honesty, impartiality and moral conduct etc. Internal documents are to be reviewed, work performance judged, opinions of the senior judge on supervision studied in this process. The basis for assessment of competence or conduct of a judge has been set forth by the Act. They provide the basis for decision making. 

In disciplinary matters, the Council can act either on any complaint or report or its own information. An Inquiry Committee to inquire upon such charge against the judge may be constituted. The Committee may, in respect to furnish and execute the notice to the alleged judge or record the statement, inquire witness evidence thereof, exercise the power equivalent to the courts and in respect to inquiries and investigation into the charge, exercise the powers as conferred onto the Investigation Officer under the Prevention of Corruption Act, 2059. The Inquiry Committee may, to accomplish the work related to inquiry, also inquire, in addition to the judge who has been charged, any other persons by presenting him or her before it. Such a judge is given the opportunity to defend himself/herself. In case of a need to file a case against any judge on the charge of any accusation of corruption under the current law, the case shall be initiated by submitting a complaint or report to the concerned Court of Appeal by the Secretary or by any other officer as deputed by the Council. During the course of proceedings of such case, Court of Appeal may exercise the power of an initial court and follow the appropriate procedure. In case a case is filed against any judge on the basis of bad conduct, the concerned judge is deemed as suspended ipso facto from his/her office from the date of case filed. 

The judge who has completed the tenure of three years in the courts of non-remote areas and two years in the courts of remote areas is, generally, to be transferred. The Chief Justice may depute any judge from one court to another court for a temporary assignment. 

In a way, the Judicial Council has been in operation for the last 23 years as an independent functionary, not only separate from the civil bureaucracy of the state, but also from the Supreme Court – which constitutionally remains the apex court of the land. There is increasing understanding that the system has certain flaws, and is not adequately delivering what it was supposed to deliver. The record keeping system, which has not been standardized, is inadequate, as is the use of IT. This independent sphere of work given to the Judicial Council has not resulted either into the efficiency of judges, or of their personal and institutional independence. There have been allegations that the judicial appointments have not been transparent. The Council has been criticized for being unable to take disciplinary action in appropriate cases. Some judges who were considered involved in improper conduct were given immunity when asked to resign. The Council continues to have problems in monitoring the judges, evaluating their performance, and exercising oversight over them. These concerns are being ventilated by responsible people, formally and informally, even in the legal and judicial community. As a response to many of these concerns, the Council even issued the Appointment of Judges (Procedural) Standards 2012. These standards were to be applied in the judicial appointment in the summer of 2013. However, these comments have not decreased. 

Especially, the switchover of the Chief Justice of Nepal to the position of the Prime Minister, almost on lien, and the apparent unwillingness of one of the Supreme Court judges, who is a members of the Council, to take part in the meeting to recommend names for the appointment in the Supreme Court, are two recent examples of internal challenges to the judiciary. In the later case, the objective of delaying the Council meeting was perceived to have the intention of preventing some retiring Appeal Court Chief judges from participating in the competition. The leadership of the Chief Justice is presumed to be both an opportunity and challenge for the success of the Judicial Council. Some key players believe that the slow progress of the Judicial Council owes to its leadership, which is invariably supportive of the independent decision making of the constitutional body. 

These examples are only the most obvious examples. There is also an increasing understanding in the judicial sphere that the Council suffers from inadequate budget, lack of human resources, and other physical infrastructures. In order to perform on regular basis according to the working calendar, the existing human resources at the Council is inadequate. It has not been able to develop as a study and research centre on the themes around which it has been built. Especially, the level of evaluation and oversight function which the Council is supposed to work on requires adequate human and physical resources. As a minimum, the Council need to work on a centralized system of record keeping on all aspects of the work of a judge including cases decided by him/her, quality of decision making, reversal at the appellate level, and grievances received by the court about him/her. Taking action on every complaint on the work performed by a judge, assigning investigators in this regard, looking into charges of improper conduct or corruption, and receiving feedback from relevant quarters require another level of human resources. For independence of its decision making, the resources and conditions of service must also be upgraded. Above all, the physical security of judges can never be over emphasized. In the context of a sitting judge of the Supreme Court, who was shot to death in broad daylight, the challenge of making decisions without the influence of external factors cannot be minimized. Apart from this, the Judicial Council also has to work as a secretariat. This puts additional burden on its human resources and infrastructures. 

The Judicial Council Secretariat is also the Secretariat of Judicial Service commission, which continues to exist under the Interim Constitution. In appointing, transferring, or promoting gazetted officers of the Judicial Service, or in taking departmental action concerning such officers in accordance with law, the government has to act on the recommendation of the Judicial Service Commission. If the loads of both these institutions are considered, their combined functions will include – 

 These functions are not only varied and extensive, but they also require expertise and seriousness. Especially, the issue of oversight and disciplinary action demands additional sensitivity. 

Institutional Capacity of Judicial Council
The institutional capacity of the Judicial Council Secretariat depends on different provisions, like its building and other physical infrastructures, the staffing situation and their expertise, the reward attraction, budget, and the ability to hire external experts, to name a few.

 Staffing situation: The current (actual) staffing situation and the demand for additional vacancies may be presented as follows: 

S.N.

Position

Service/Group

Rank

Current No. of Human Resource

Human Resource to be Added[2]

Proposed Human Resource

1.

Secretary

-

Gazetted Special Class

1

-

1

2.

Joint Secretary

Justice/Justice

Gazetted First Class

1

1

2

3.

Under Secretary

Justice/Justice

Gazetted

Second Class

2

2

4

4.

Section Officer

Justice/Justice

Gazetted Third Class

3

4

7

5.

Accountant

Administration/Accounting

Non-Gazetted First Class

1

-

1

6.

Nayab Subba

Justice/Justice

Non-Gazetted First Class

2

6

8

7.

Typist Nayab Subba

Administration/General Administration

Non-Gazetted First Class

2

-

2

8.

Computer Technician

Miscellaneous

Non-Gazetted First Class

-

2

2

9.

Dittha

Justice/Justice

Non-Gazetted Second Class

-

1

1

10.

Sub Accountant

Administration/Accounting

Non-Gazetted Second Class

-

1

1

11.

Light Weight Vehicle Driver

Administration

Non Ranked

3

-

3

12.

Office Helper

Administration

Non Ranked

2

-

2

13.

Cleaner

Administration

Non Ranked

1

-

1

Total

18

17

 

 The chart above makes it clear that there are only seven Judicial Service personnel of officer level at Judicial Council. The other staff members are the members of the assistant level. Given the nature of the work, this institution requires expert staff as well. There is none even now. These staff members do not receive any benefits or allowances by way of encouragement. They do not even receive judicial allowance that the judicial cadre working at courts is being offered. It is clear from this situation that that the Council will be unable to meet expected institutional capacity. Recently, six positions of newly recruited district judges have been installed at Judicial Council. They are being engaged in study and research. Yet, it is unclear how long they will remain posted there.

 Budget:   
The responsibilities given to the Judicial Council must be met by adequate budgetary provisions. The budget allocated to the Council is derived from the overall budget of the judiciary. The provision for the Judicial Council as other components of rest of the judiciary is proposed to the government (Finance Ministry) by the Supreme Court. The Council cannot propose its budget to the government independent of the Supreme Court in the current practice as it has been taken as an arm of the judiciary. The declared objectives of the recent budget speech is to make the Supreme Court and subordinate courts resourceful, and gradually increase the judiciary budgetary provision to one percent of the total allocation. But there is not much change in the trend of investment in the judiciary. It is the Finance Ministry which has the last word on the Supreme Court budget proposal. But the Supreme Court must be on board to provide direct budgetary support to the Judicial Council from the government or the donor. The fiscal situation of the Judicial Council is as follows. 

S.N.

Fiscal Year

Allocated Budget Rs.

Allocated

Total Expenditure

Current Expenditure

Capital Expenditure

Current Expenditure

Capital Expenditure

1.

2068/069 (2011/12)

2,21,11,364/-

1,36,21,364/-

84,90,000/-

13361226/-

84,88,594/-

2.

2067/068(2010/11)

9629000/-

9292000/-

337000/-

8337225.51/-

336062/-

3.

2066/067 (2009/10)

9170000/-

8400000/-

770000/-

8357790.84/-

713207/-

4.

2065/066 (2008/09)

7923000/-

7433000/-

490000/-

7309417.74/-

123582.06/-

 The chart above shows it clearly that there is significant increase in the year 2068/069. However, even this increase does not meet Judicial Council’s requirements.

 Building and Physical Infrastructure:
The Judicial Council Secretariat does not have its own building as yet. It is surviving in the annex building given by the Supreme Court. It is not provided with the whole building but only with a few rooms. While the Supreme Court itself is suffering from a lack of adequate rooms, there is very little possibility that it will be able to offer some more rooms to the Judicial Council. Along with the building, the Council also suffers from limited physical means and resources.

Complaints and its Handling Process
 The complaints handling process employed by Section 5 to 8 of the Judicial Council Act 1991 (2047) looks generally adequate. Where there is any complaint, or a report seeking for an action against any judge, the Council can either conduct an initial inquiry through its chairperson or members or a judge of the Appellate Courts, or form an Inquiry Committee to inquire upon such charge. The proceedings of initial inquiry are to be confidential. The inquiry may be closed if there is no case. But the Council can even form an Inquiry Committee in the beginning, as it deems necessary, on the charge alleged against any judge. The Inquiry Committee may, in respect to furnish and execute the notice to the alleged judge or record the statement, inquire witness evidence thereof, exercise the power equivalent to the courts and in respect to inquiries and investigation into the charge, exercise the powers as conferred on to the Investigation Officer under the Prevention of Corruption Act, 2059. Chapter VII of the Judicial Council (Procedural) Rules 2056 further provides the procedures for complaints handling. The details of the complaints handled by the Council ever since its establishment till the end of Mangsir of 2058 is as follows:

S.N.

Fiscal Year

Total Complaints

Initially Decided for No Action

Constitution of Inquiry Committee

Action Taken

1.

From the beginning to the year 2067, Aashad End

68

-

5

10

2.

2053/054

24

-

-

-

3.

2054/055

27

2

-

-

4.

2055/056

53

2

1

1

5.

2056/057

46

25

1

-

6.

2057/058

11

12

1

1

7.

2058/059

18

-

-

-

Total

247

41

8

12

 The situation of complaints handling in the years that followed is as follows: 

S.N.

Fiscal Year

Total Entry

Settled

Remaining

No Action

Action

1.

Up to Mangsir 2061

335

288

23

24

2.

Up to Mangsir 2062

375

325

29

18

3.

2064/065

96

36

-

60

4.

2065/067

149

54

-

95

5.

2068/069

52

52

-

-

There is a general worry for the lack of a system of overview and evaluation of performance of judges in the country. As a concept, it has been agreed that performance evaluation is important for many purposes including the objective of regulating behaviour of judges. But there are no clear guidelines on how to do it. A deputy registrar of the Supreme Court confirmed that there is a draft performance evaluation form being used. But it is not in a shape that could be shared with others.

 An inspection supervision guideline exists in the Supreme Court in the form of a check list. This is yet to be finalized and adopted. The court administration was shy of sharing this with others at this stage. There is, however, willingness to further work on it, and give it some regulatory basis. 

Even though the system of Judicial Council has been at work since 1990, the progress in the complaints handling and cleaning up of the judiciary is not encouraging. The Secretariat of the Council remains at Supreme Court, and there is no change in the system of the Council being headed by the Chief Justice. There is clear demarcation of the role between the Judicial Council and Supreme Court. Despite this many of the activities of the Judicial Council are being performed by the Supreme Court. For example, the Judicial Council has not been allowed to come out with its separate annual report. It has not been given opportunity to deal with the donors and seek its independent funding. The idea of developing its own strategic plan is therefore never on board. The Judiciary Strategic Plan is considered good, and mutually reinforcing, but had the Judicial Council been its own master, the impact on its current financial situation, choice of interventions, and exercise of disciplinary actions would have been different.  

Constitutionally, the Supreme Court is only one of the many courts in Nepal which the Council has the power to oversee and regulate under its Act. In practice, the Chief Justice defines its power and limitations. It is the responsibility of the Judicial Council to supervise courts and evaluate the performance of judges. However, the Administration of Justice Act, 2048 still gives continuity to the supervisory power of the Supreme Court (practically Chief Justice) over all courts. This violates the existing constitutional provision on the Judicial Council. However, a senior officer at the Judicial Council is of the opinion that there is little external threat to the Judicial Council (from the government or others). Another mid-career professional thought that the Judicial Council leadership should be given to the retired Chief Justice and not to the ex officio to keep it free from the ambitions or compulsions of the chief justice. It is clear that the Chief Justice has neither been able to lead nor to allow the Secretariat to evolve into its own terms. 

The Judicial Council is under constant pressure to reform. In fact, it will be difficult for it to endure recent controversies in the appointment issues without seriously assuring the stakeholders that it will improve and change. It is possible to deal with the current Chief Justice, and the first and second senior-most judge on the queue about the prospective plans in terms of change in policies and practises, and development of effective institution away from the Supreme Court. 

Nepal Bar Council
The Bar Council Act 1993 (2050) was a milestone in the legal profession of Nepal. It allowed the legal practitioners self-regulation and freedom from the regulation of the Supreme Court. The Act replaced the Legal Practitioners Act 1968 (2025). Section 8 of the Bar Council Act laid down the following functions, duties, and powers of the Council. It enabled the Council, among other things, to take action on the following disciplinary matters: 

The statistics of legal practitoners as at Shrawan 2068 (July 2011) is as follows: 

S. No.

Legal Practitioners

Number

1

Senior Advocates

103

2

Advocates

13528

3

Pleaders

9732

4

Paralegals

1093

 The Council may form Disciplinary Committee on the chairpersonship of a Councilor to examine and take action on any complaint or information received to the Council against any legal practitioner who violates this Act or Rules framed under it or the lawyers code of conduct. It has equal powers as to the court regarding issuing summons and examinations of evidence. The Disciplinary Committee may reprimand a legal practitioner, suspend him or her from practicing law for a specific period of time, and cancel his or her license. While conducting proceeding, the concerned legal practitioner has the opportunity to defend himself/herself. The Legal Practitioner who is not satisfied with the decision of the Disciplinary Committee may appeal before the Supreme Court. 

The institution of the Bar Council is not considered effective by any lawyer or lawperson in Nepal. The Council is led by the Attorney General of Nepal as chairperson. The President of the Nepal Bar Association is the vice chairperson of the Council. Other Councilors are registrar of the Supreme Court of Nepal, the Dean of the Tribhuvan University Institute of Law, the senior advocate(s) elected from among the legal practitioners of the five development region of Nepal by an electoral college, one representing each region, and two senior advocates nominated by the Nepal Bar Association. All these officials have their primary responsibilities elsewhere, and have little time and commitment for the Council. In the experience of the present secretary of the Council, who is on deputation from the office of the Attorney General, it is very difficult to call a meeting of the Council. There is no statutory minimum number of meetings that must be held every year. For example, during the tenure of one attorney general, there was no meeting at all. Similarly, at times, even the councilors had to give written submission to call such a meeting. If at least four councilors submit a written request to the chairperson for the meeting, the chairperson is under compulsion to issue directive to the secretary to call such meeting. The reason is that the Council is not considered a priority by the chairperson or vice chairperson. If it is in a meeting, the Council may, as per necessity, delegate any or all of the powers conferred on it pursuant to this Act to any Councilor, Secretary, Committee or the member of any Committee. But when there are no meetings, it is difficult to set the machinery into action. 

The current ability for the oversight of standards by the Nepal Bar Council is already suspected.[3] At this stage, it has 110 complaints at its docket. From the complaints against fraud to illegitimate promotion to the status of senior advocate to the unfair dealing with the clients, these cases have been tough for decision making. Some common cases are as follows: 

 The Disciplinary Committee does not have clear procedures on how to respond when complaints are received. It is not clear whether the preliminary investigation should right away start with the person against whom the complaint has been received or only after some level of inquiry has gone into the subject. Section 11(3) of the Act clearly maintains the options before the Disciplinary Committee. Yet, there is a practice of issuing admonitions in the place of stern actions, even though this option has not been left with the Committee. There is one Internal Transaction of Business Rules in force, although it is not effectively followed. 

There is unusual delay in the handling of complaints. Political biases and nepotism are quite common. There is no information and record keeping system about the legal practitioners. The Council does not have dependable information management system. Even at this stage, the Bar Council does not have an updated list of legal practitioners. It is difficult to know how many of approximately 14500 advocates and senior advocates in Nepal (2013) hold both the license of advocate and pleader. Still many of the legal practitioners have not registered with the Bar Council. There is no compulsion that law offices be registered with the Council. It is still possible to work as legal practitioner without registering with the Bar Council, and without even joining any of the units of Nepal Bar Association. 

The figure of action taken till 2011 is as follows: 

Action

Number

Revocation of license

9

Suspension

4

Punishment

16

Admonition

10

 The inefficiency of the Council is not limited to disciplinary actions. All law graduates who come to sit in the bar exam pass it out. Nobody fails.  

Apart from 11 councillors, the Nepal Bar Council is staffed by a secretary (an under secretary on deputation from the Office of the Attorney General), one senior administrative officer, one computer operator, one accountant, one assistant accountant, one administrative assistant, and one helper. Only the top two are officer level employees. It is inconceivable that the team can handle the requirements of a modern bar council. There is little incentive for anybody except the secretary, who receives a fifty percent top up salary from the Bar Council on what he receives from the government as a public prosecutor. 

The Nepal Bar Council, being a professional body of practising lawyers, is not the financial responsibility of the government. It is run by its own resources. The problem with the Council is that it has not even been able to receive an institutionalization grant additional to its annual budget from the government. 

Balance Sheet as at 2069 (Asar) 

Particular

Schedule

Current Year

Last Year

Capital (Adjusted)

Protected Fund

Reserve Fund

 

1

2

40,419,153.80

(456,863.10)

303,571.91

40,419,153.80

177,499.57

302,018.13

Total

 

40,265,862.69

40,595,671.80

Mobilization of Resources

Immovable Property

Fixed Assets

Long-term Investment

Total (A)

Running Capital

Cash and Bank Deposit

Short-term Investment

Advance Payment Tax

Advance and Borrowing

Advance Payment Tax

 

 

3

 

 

 

4

 

 

5

 

 

 

34,950,363.95

 

34,950,363.95

 

7,395,549.60

 

 

49,855.11

 

 

36,433,110.74

 

36,433,110.74

 

6,543,063.82

 

 

49,855.11

2,548.13

Total (B)

 

7,445,404.71

6,595,467.06

Running Liability and Provision

Mortgage and Outstanding Payment

Total C

Net Running Capital (D=B-C)

 

6

 

2,129,906.00

2,129,906.00

5, 315,498.71

 

2,129,906.00

2,129,906.00

4,465,561.06

Total (A+D)

 

40,265,862.69

40,898,671,80

 Income & Expenditure Statement as at 2069 (Asar end) 

Particular

Schedule

Current Year

Last Year

Income

Income from main activity

Miscellaneous Income

 

8

9

 

3,164,950.00

1,352,311.14

 

3,573,720.00

1,488,116.49

Total

 

4,516,261.14

5,061,836

Expenditures

Staff

Main Activities

Office Operation

Capital Expenditure

Depreciation

Total

Saving/Loss (1-2)

Income Tax Provision

Saving/Loss from last year

Saving/Loss up till this last year

Saving/Loss incurred up to this year (transport to balance sheet)

 

10

11

12

13

 

1,563,232.34

1,344,497.92

675,180.60

 

1,568,713.25

5,151,624.11

(634,362.97)

 

(634,362.97)

177,499.87

 

 

 

(456,863.10)

 

1,145,202.63

1,059,743.56

734,761.82

324,689.29

1,619,939.30

4,884,336.60

177,499.87

 

 

 

 

 Nepal Bar Council has its internal resources and a potential to attract donors to its activities. However, the poor performance record and a lack of leadership come in the way.


[1] The present Judicial Council comprises of Mr Damodar Prasad Sharma (Chief Justice – considered apolitical) as Chairperson and Mr Narahari Acharya (Minister of Law, Justice, Parliamentary Affairs and Constituent Assembly – from Nepali Congress), Mr Ram Kumar Prasad Shah (seniormost Supreme Court Judge – comes from deprived Madhesi community), Mr Khem Narayan Dhungana (Jurist – close to CPN-UML), and Upendra Keshari Neupane (Advocate representing Nepal Bar Association, close to Nepali Congress) as Members.

[2] “Human resource to be added” means there is approved vacancy, but it needs to be filled.

[3] The existing Nepal Bar Council comprises of Chairperson Mr Baburam Kunwar (Attorney General of Nepal, close to Nepali Congress),  Nepal Bar Association President Mr Hari Krishna Karki (Vice-chairperson, identified with CPN – UML), Supreme Court Registrar Mr Lohit Chandra Shah (Member, largely politically neutral), Tribhuvan University Law Faculty Dean Bidya Kishore Roy (Member, independent democrat), Advocate Lav Kumar Mainali (Member, close to CPN – UML), Advocate, Ram Prasad Ghimire (Member, Close to Nepali Congress),  Advocate Krishna Bahadur Thapa, Dhurba Kumar Shrestha, Devraj Awasti, Laxmi Prasad Mainali, Prakash Babu Panta (Members) , and Daman Singh Bista (Secretary)

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