The Attorney General and government attorneys: their role under Nepal’s Constitution

This article is general information, not legal advice for any person or case. Consult a lawyer before acting on your own matter.

In most criminal cases in Nepal, such as theft, fraud, murder or corruption, the victim is not the plaintiff. The case is brought in the name of the Government of Nepal (a sarkarwadi or state-party case). The state is represented in court by government attorneys, who are led by the Attorney General. Part 12 of the Constitution (Articles 157 to 161) deals with this office.

How the Attorney General is appointed

Under Article 157, the President appoints the Attorney General on the recommendation of the Prime Minister. Only a person qualified to be a Supreme Court justice may be appointed. The Attorney General holds office at the pleasure of the Prime Minister. The office falls vacant on written resignation to the President through the Prime Minister, removal by the President on the Prime Minister’s recommendation, or death. Pay and benefits are the same as those of a Supreme Court justice.

Main functions, duties and powers

Article 158 makes the Attorney General the chief legal adviser to the Government of Nepal. Under it, the Attorney General:

• gives opinions on constitutional and legal questions to the government and to other bodies the government designates;
• represents the government, personally or through subordinate government attorneys, in cases in which the government has a right, interest or concern;
• makes the final decision, except as otherwise provided in the Constitution, on whether to bring a case on behalf of the government in any court or judicial body;
• must be consulted before the government withdraws any case;
• monitors, or has others monitor, whether the Supreme Court’s interpretations and the principles it lays down are being implemented;
• on receiving a complaint or information that a detained person has not been treated humanely, or has not been allowed to meet relatives or a lawyer, investigates and directs the authority concerned to stop the practice;
• appears before the Federal Parliament or its committees when called, to give opinions on legal questions.

The Attorney General may delegate some of these powers to subordinate government attorneys, subject to prescribed conditions.

Structure of the government attorney service

Below the Office of the Attorney General sit the High Government Attorney Offices, Special Government Attorney Offices and District Government Attorney Offices. Government attorneys belong to the government attorney group of the Nepal Judicial Service. Because appointments, transfers and promotions of gazetted judicial service officers involve the Judicial Service Commission, government attorneys are tied to that process too. The Attorney General is also a member of the Judicial Service Commission (Article 154).

Under Article 160, each province has a Chief Attorney, appointed by the Province Head on the recommendation of the Chief Minister. The Chief Attorney is the chief legal adviser to the provincial government and works under the Attorney General. Only a person qualified to be a High Court judge may be appointed.

Annual report

Article 159 requires the Attorney General to submit an annual report on the year’s work to the President, who has it laid before the Federal Parliament through the Prime Minister. The report must cover the number of opinions given, cases filed on behalf of the government, the defence of cases to which the government is a party, matters needing future improvement, and trends in crime.

Why it matters in practice

Whether a state case is brought at all, which offence is charged, and what legal route applies if the government later wants to withdraw a case all depend heavily on government attorneys’ decisions. The same question has arisen in the recent debate over withdrawing cases linked to the Gen Z movement.

In a state case, victims and complainants can ask the District Government Attorney Office concerned about the status of their case.

Sources

Primary sources

• Constitution of Nepal, Article 157 (translated text) — nepallaws.com
• Constitution of Nepal, Article 158 (translated text) — nepallaws.com
• Constitution of Nepal, Article 159 (translated text) — nepallaws.com
• Constitution of Nepal, Article 160 (translated text) — nepallaws.com
• Constitution of Nepal, Article 154 (translated text) — nepallaws.com
• Nepal Judicial Service (Constitution, Group and Class Classification, Appointment, Transfer and Promotion) Rules, 2051 — Nepal Law Commission