Nepal’s high courts: jurisdiction, appointment of judges and the chief judge’s role

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

The Constitution of Nepal (2015) sets up three tiers of courts: the Supreme Court, the high courts and the district courts. The high courts, in the middle tier, hear most appeals from district courts and writ petitions against authorities within their province. The rules are in Part 11 of the Constitution, Articles 139 to 147.

One high court in each province

Article 139 provides for a high court in each province. There are high courts in Biratnagar, Janakpur, Patan, Pokhara, Tulsipur, Surkhet and Dipayal. Several also sit in other cities through permanent benches — for example the Tulsipur court’s bench in Butwal, the Patan court’s bench in Hetauda and the Janakpur court’s bench in Birgunj. Each high court has a chief judge, and federal law fixes how many other judges it has.

A high court may also bring contempt proceedings and punish anyone who obstructs its work or that of the courts below it, or who disobeys its orders or judgments.

Jurisdiction: writs, appeals and confirmation

Article 144 gives the high courts three kinds of power:

• Writ jurisdiction. To enforce fundamental rights; to enforce other legal rights where no other remedy exists or the available remedy is inadequate; or to settle a legal question in a dispute of public right or interest, a high court may issue orders including habeas corpus (bandi pratyakshikaran), mandamus, certiorari, prohibition and quo warranto against any government, official, body or person within its province.
• A limit on provincial assemblies. Except on the ground of lack of jurisdiction, a high court may not interfere in a provincial assembly’s internal proceedings, actions or punishments concerning breach of its privileges.
• Original, appellate and confirmation jurisdiction. As provided by law, a high court hears certain cases at first instance, hears appeals, and examines decisions referred to it for confirmation (sadhak) — a review of certain lower-court verdicts that the law requires a higher court to confirm. Which cases reach a high court, and how, is set by federal law.

Power to call up and transfer cases

Under Article 145, if a case pending in a court below involves a question of provincial law that needs to be settled, the high court may call up the case and decide it in full, or decide only that question and send the case back. Where there are special circumstances in which judicial impartiality may be questioned, it may also, stating its reasons, order a case to be moved from one district court to another within its area.

Who becomes a judge, and how

Under Article 140, the Chief Justice appoints high court chief judges and judges on the recommendation of the Judicial Council, the constitutional body that recommends and disciplines judges. A Nepali citizen with a bachelor’s degree in law qualifies if he or she has:

• served as a district judge for at least five years;
• practised continuously as a senior advocate or advocate for at least ten years;
• worked for at least ten years in teaching, research or another field of law and justice; or
• served for at least five years in a gazetted first-class post of the judicial service.

For district judges, their annual output and how often their decisions were upheld on appeal are also considered. If the post of chief judge is vacant, or the chief judge is absent, the most senior judge acts as chief judge.

Transfer, retirement and removal

• Transfer. The Chief Justice may transfer a high court judge from one high court to another on the Judicial Council’s recommendation (Article 143). Judges do no non-judicial work, except that the government, after consulting the Council, may assign them for a fixed period to a judicial inquiry, legal research or other work of national importance.
• Retirement. The office falls vacant when the judge turns 63 (Article 142).
• Removal. The Judicial Council may remove a judge for incompetence, misconduct, bad faith or a serious breach of the code of conduct, or if physical or mental illness prevents the judge from working. The judge must be given a reasonable opportunity to defend himself or herself, and may not hear cases while the proceedings are pending.
• Practice after retirement. A retired high court judge may appear and plead before the Supreme Court and any high court other than the one in which he or she served, but not in that court or the courts below it (Article 146).

The chief judge’s responsibility

Article 147 makes the chief judge ultimately responsible for effective administration of justice within the high court’s area. Subject to the Constitution and the law, the chief judge may give directions to the high court, the courts below it and judicial bodies. The annual case-disposal targets and progress figures that high courts publish are part of this responsibility.

Practical points

A writ against a decision of a provincial government, a local government or an office within a province will usually go first to that province’s high court. Appeal time limits differ by type of case, so take advice early. Free legal aid is available under Nepali law for people who cannot afford a lawyer.

Sources

The articles cited are from Part 11 (The Judiciary) of the Constitution of Nepal.

Primary sources

• Constitution of Nepal (official Nepali text) — Nepal Law Commission
• Constitution of Nepal (English translation) — Constitute Project