Notes on Nepal's Justice System

(Unpublished Notes) August 2012

Most people define justice in terms of the monetary value they receive.[1] More people are defining justice along the lines of ‘social justice,' in part linked to the discussions around transitional justice. [2]

Nepal's formal justice system includes one Supreme Court, 16 Courts of Appeal, 75 District Courts and 8 Special Courts and Tribunals.

The formal justice system however includes all formal institutions, from the police, to the Attorney General, Ministry of Law and Justice, Nepal Bar Association and its constituent units, Judiciary, Nepal Law Commission, National Judicial Academy, and quasi-judicial institutions such as specialist courts and local government bodies.  

Most people in Nepal prefer to use the police, local authorities or alternative dispute resolution service (ADR) providers (including mediation) for their justice needs. One survey showed people were most aware – 92% - of VDCs as justice providers. More than half stated that the police are responsible for making decisions regarding guilt and innocence, with only 25.4% stating that the courts and government-appointed judges do so[3]. Other popular ‘go-to’ bodies are political parties; traditional tribal, ethnic, cultural dispute resolution mechanisms[4] and internationally supported ADR services. Most offer a combination of mediation and arbitration[5]. The table below shows responses when asked who people went to in order to seek justice[6][7]:

2007

2008

2009

2010

Nepal Police

63

35

55

66

Court

34

41

44

31

Local important person or community leader

39

16

32

31

VDC office

3

25

31

28

District Administration Office

0

13

6

9

CBOs

17

7

3

4

 The formal justice system is not accessible for most Nepalese:[8][9] Only 5.7% of marginalized people have ever used the court for justice.[10] Only 8.9% of poor people have ever used the courts for justice.[11]

The judiciary is dominated by Bahun and Chhetri. Madhesi and Newar representation is satisfactory but indigenous community, dalit and women's representation is negligible. There is currently no quota system to resolve this issue.[12] There is also no programme by way of affirmative action to create special provisions (training or higher education opportunities) for judicial cadres in the judiciary or the legal system. Though a Bill on inclusion (reservation) encompassing several public services in the state was registered with the Legislature-Parliament early this year, it did not include Judiciary in its scheme;

Expense / convenience (time involved); linked to the need for many to pay for support (e.g. facilitation; corrupt payments), transport costs (every month litigants have to ensure their presence in courts, 90% of the time to no effect other than keening the case on record[13]), with no courts outside of District capitals, when using a system with a very weak legal aid component;

Language, laws and procedures are complex. Combined with a lack of legal aid, legal education and social differences between users and staff, this deters users.

Language barriers (lack of translation).

Petty corruption in justice administration: More than half believe that the judiciary is not independent, primarily due to political interference and corruption.[14]

Poor legal education:[15] many people remain unaware of their rights and responsibilities.

Social pressure: Patriarchal family values and caste based social orders are formidable informal barriers, discouraging people to take cases to court .[16]

Weak enforcement:[17] often due to impunity (political  / social pressure on police), but also due to the absence of local government (VDC chairs[18]) judgments are not quickly enforced. There is no data, but this statement forms the part of the Supreme Court report. This discouraging people from pursuing cases.

A large number of unfilled posts, particularly of junior staff, due to poor management, poor incentives and political interferenceOut of 276 positions for judges, 254 are filled; of 397 Gazetted officers, 347 are filled; of 2609 non-gazetted officers only 1913 are filled; of 1096 regular staff, only 733 are filled. I.e. of 4378 posts, 1131 are unfilled.

The slow pace of the courts (backlogs) makes the system impractical and too costly for many: Currently the Supreme Court has a backlog of 30,000 cases, which based on existing resources and disposal records, will take 6 years to clear, without any new cases being introduced[19]. A 2002 report maintained that over 50% of cases in all levels of the courts are shifted to the following year.[20] In 2010-11, with 8303 new cases filed, the court had 17892 cases to decide. The SC was only able to settle only 7470 cases or 41.75%, leaving 9589 cases to be carried forward. [21] In 2010-11, the Courts of Appeal carried forward a backlog of 8751 cases, had 15875 new cases filed giving a total of 24,626 cases for the year. They were able to settle 15,648 cases or 63.54%, leaving around 9,000 to be carried over.[22] In 2010-11, District Courts carried forward a backlog of 36,374 case, registered an additional 51,421 new cases, giving a total of 87,795, of which they settled 48,977 cases (55.79%), leaving around 38,000 to be carried over.[23] Other courts and tribunals (the Corruption Special Court, Labour Court, Administrative Court, Revenue Tribunal and Foreign Employment Tribunal) carried forward a backlog of 649 cases in 10/11, registered 965 new cases giving a total of 1614, of which they settled 398 cases (24.66%). [24]

The slow pace of courts is due to untrained junior staff, poor court management and a lack of human resources (Judiciary Strategic Plan 2013-14)

Discriminatory legal provisions: language barriers, translation services, under representation of ethnic groups, lack of enabling provisions for the victims of crimes, etc (UNDP Access to Justice and Human Rights (2010) at p. 9

Weak investigations and relationships between the police and attorney general’s office and Judiciary, resulting in cases often rejected: Of the respondents who had reported a crime that was then investigated by the Nepal Police, 32.4% stated that the case had entered the court system. Reasons given by respondents as to why their cases had not gone to court ranged from lack of evidence to political pressure, inefficiency on the part of the police or public prosecutor, and a settlement being reached outside the court system.[25]

“The public – in particular the poor and those belonging to excluded socio-economic groups – do not use the formal justice sector due to the time, cost and perception that justice can be bought or influenced… the lack of female personnel within the judiciary and lack of female lawyers prevents women from approaching the justice services”[26]

Out of the 8.9% of people surveyed who said that they had approached the courts, 29% were not satisfied – reasons given were: faulty verdict, lengthy process, no sustainability of the verdict, politicisation of crime, and discrimination based on caste/ethnicity and wealth/social background.[27]

What is the impact of restricted access to justice?

Instability: inequality, particularly in access to justice and an inability to manage disputes and political disagreements through an efficient and impartial legal system were a contributing factor to various conflicts in Nepal. Data suggests people believe that an improved legal system would reduce conflict in Nepal with people citing ‘stronger laws’ 63.1%, equal enforcement of the law’ 55.7%, and civic education 54.4%[28] as key.

Slower growthinternational evidence is available. See Vivek Maru, Access to Justice and legal Empowerment: A Review of World bank Practice (Legal Vice Presidency, The World Bank, 9/2009) UNDP, 'Making the Law Work for Everyone', Volume 1, Report of the Commission on Legal Empowerment of the Poor, United Nations Development Programme, New York, 2008]. Constant references in Nepal to high political instability undermines investment and growth (Enabling Civil Society to Contribute to the Democratic Reform of the Justice and Security Sector in Nepal (2010) six-district study “in some areas, profound and sometimes chronic insecurity for ordinary citizens makes it difficult to plan, or even imagine, broader Justice and Security Sector Reform (p39).” Often investments in specialist small enterprise  courts and commercial courts has a very positivie impact on growth.

More corruption: a weak legal system, reduces the risks of being caught and punished, providing stronger incentives for people to be corrupt.

Too many people are in detention that should not or do not need to be there, violating rights and costing money: There were a total of 4443 detainees connected with 3086 cases in courts under judicial detention;

Increased violence against women and children: a weak justice system provides few disincentives for violence against women and children, particularly trafficking. Women overwhelmingly cite gender based violence as the number-one cause of insecurity (Onslow 2010). Gender-based violence was reported at a 41.6% occurrence rate with no discernable differences between the various geographic or demographic groups.[29]

Financial impact on victims of crimes often driving the poor further into poverty: loss of income from unexpected emergency expenditures, expenses required in criminal justice process; costs of lost items due to crime. 


[1] ‘Review of International Community Support to Access to Security and Justice and Rule of Law’, 2011

[2] Training and Orientation Needs Assessment of the Nepali Judiciary on Human Rights and social Justice (Lalitpur: National Judicial Academy, January 2012)

[3] USIP, 2011, ‘Security and Justice in Nepal, Citizen’s Perspectives on the Rule of Law and the Role of the Nepal Police’ (Table 52)

[4] For example the Khata Yanzi system in Eastern Sherpa Community, Badhgar System in Tharu community in Bardia, Mukhia System in Upper Mustang, Manyajan System in eastern Yadav Community

[5] Review of International Community Support to Access to Security and Justice and Rule of Law’, 2011

[6] Public Perception Surveys on Community Security and Safety (2007, 2008, 2009 and 2010). Q61; response base of 3016; Percentages based on multiple responses

[7] USIP 2011 survey

[8] Security and justice in Nepal: District Assessment Findings, (2010).

[9] Antenna Foundation Nepal (AFN), Equal Access Nepal, Forum for Women, Law and Development, Institute for Human Rights and Communication Nepal, International Alert and Saferworld, Security and justice in Nepal: District Assessment Findings, (2010).

[10] Danida Phase II Research 2010 - in this survey marginalised was defined as including hill Dalits, Tarai Dalits, disadvantaged Janajatis, endangered Janajatis and religious minorities (Muslims and churautes).

[11] Ibid - In this survey, households which spent Rs. 5,000 or less than this to meet all the expenses in a month are categorized as poor households.

[12] ‘Review of International Community Support to Access to Security and Justice and Rule of Law’, 2011

[13] Y Sangroula, ‘Community Mediation: A Pedagogic Reflection in the Context of Nepal’

[14] USIP, 2011, ‘Security and Justice in Nepal, Citizen’s Perspectives on the Rule of Law and the Role of the Nepal Police’ (Figure 12)

[15] ‘Review of International Community Support to Access to Security and Justice and Rule of Law’, 2011

[16] ‘Review of International Community Support to Access to Security and Justice and Rule of Law’, 2011

[17] UNDP Access to Justice and Human Rights (2010)

[18] As the local self government units are without their representatives for long, it has been difficult for the courts to perform its functions including issuing of summons to the people in the field or pursue enforcement of judgements in the absence of local officials. Annual Report of Supreme Court 2010-11 (Kathmandu: Supreme Court, 2011)

[19] Y. Sangroula, ‘Community Mediation: A Pedagogic Reflection in the Conext of Nepal’

[20] TAF, 2002, Trail Court System in Nepal

[21] Annual Report of Supreme Court 2010-11 (Kathmandu: Supreme Court, 2011)

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] USPI 2011 survey (p 65)

[26] International Alert,  2010, p 19.

[27] Public Perception Surveys on Community Security and Safety (2007, 2008, 2009 and 2010)

[28] USIP, 2011, ‘Security and Justice in Nepal, Citizen’s Perspectives on the Rule of Law and the Role of the Nepal Police’

[29] USIP, 2011, ‘Security and Justice in Nepal, Citizen’s Perspectives on the Rule of Law and the Role of the Nepal Police’

 

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