| 33 |
Are judges appointed fairly? |
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33a:
In law, there is a transparent procedure for selecting national-level judges.
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| Score: |
YES |
NO |
 |
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Comments: The law prescribes the specific selection procedure for national-level judges. The chief justice of the Supreme Court is appointed by the prime minister (of course, in the capacity of the head of state, as he now enjoys this particular right as well) on the recommendation of the Constitutional Council, whereas other judges of the Supreme Court are appointed by the chief justice on the recommendation of the Judicial Council. Similarly, the chief justice appoints the Appellate Court judges per the recommendation of Judicial Council.
References: The Interim Constitution of Nepal 2007, Articles 103 and 109
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33b:
In practice, there are certain professional criteria required for the selection of national-level judges.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: The law prescribes precise criteria.
References: The Interim Constitution of Nepal 2007, Article 103 (2) and (3), and Article 109 (2) and (3); www.sambidhan.org
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33c:
In law, there is a confirmation process for national-level judges (i.e. conducted by the legislature or an independent body).
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| Score: |
YES |
NO |
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Comments: For the first time in Nepalese political history, the confirmation process has been prescribed for the constitutional posts. The parliamentary special committee on public hearing is entrusted with the responsibility of confirming the nominees.
References: Legislative-Parliament Rules 2007, Section 212
Peer Review Comments: The chief justice of the Supreme Court, Kedar Giri, and four other judges were appointed after such a parliamentary hearing.
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| 34 |
Can members of the judiciary be held accountable for their actions? |
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34a:
In law, members of the national-level judiciary are obliged to give reasons for their decisions.
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| Score: |
YES |
NO |
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Comments: Judges are required to give reasons for their decisions. Various case laws direct judges to maintain rationality in their decisions by giving proper reasons for the conclusions they arrive to.
References: Country Code 1963, No. 202 of the chapter "Of Court Management"; Supreme Court Regulation 1992 ; Sections 67, 68, 72 and Annex 6;
Thakur Gaire vs. Ministry of Home Affairs, Nepal Law Journal, Decision No. 7672, 2006, No. 3, page 388.
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34b:
In practice, members of the national-level judiciary give reasons for their decisions.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: The Supreme Court of Nepal is a record court also, hence it is required to give reasons for the decisions it makes.
References: The Interim Constitution of Nepal 2007, Article 102 (3)
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34c:
In law, there is a disciplinary agency (or equivalent mechanism) for the national-level judicial system.
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| Score: |
YES |
NO |
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Comments: There is an entity called Judicial Council, which is mandated to investigate breaches of procedure and abuse of power within the judiciary. The Council deals with all the matters relating to judicial administration, including the appointment, transfer, disciplinary action, and even the dismissal of judges.
References: The Interim Constitution of Nepal 2007, Article 113
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34d:
In law, the judicial disciplinary agency (or equivalent mechanism) is protected from political interference.
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| Score: |
YES |
NO |
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Comments: Because the members of the judicial branch (including the representative from the Bar) have a predominant presence in the Judicial Council, this automatically limits the political interference. The chief justice is the presiding officer of the Judicial Council. Membership is comprised of the senior-most judge from the Supreme Court, a senior advocate (having at least 20 years of experience) nominated by the Nepal Bar Association, a jurist nominated by the prime minister, and the minister of Justice.
References: The Interim Constitution of Nepal 2007, Article 113 (1)
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34e:
In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) initiates investigations.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: An independent review of this system suggests numerous problems over the functioning so far as the prevalent judicial culture is concerned. Regarding initiation of investigations, the Council does crumble to both internal and external pressure from different interest groups. Besides, a passive enforcement mechanism adds woes to the problem. The Council acts on formal complaints only, hence the effectiveness is limited.
References: Based on the Interview with lawyer Hari Phuyal working for the International Commission of Jurists (ICJ) Nepal
Peer Review Comments: There are no investigations except in exceptional cases. Reports by Transparency International and other organizations show Nepal's judiciary as a corrupt agency. But in a one-year period, no single investigation was initiated as in the past.
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34f:
In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) imposes penalties on offenders.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: The vested interests of different influential groups and even of the members within the judiciary may prevent the Council from taking action against the defaulters. For instance, despite media reports on open bargaining over a bribe from a court client, the Council did not intervene in a timely manner (taking up the case of the alleged court official in the famous CD scandal), which raised serious questions.
References: Media Reports
"Corruption in Supreme Court", A cover story by Shiva Gaunle, Himal Khabarpatrika, March 15-29, 2007, www.nepalihimal.com;
The Kathmandu Post too had reported the case www.ekantipur.com.
Peer Review Comments: infamous CD scandal instead of famous CD scandal. Rest is fine.
Peer Review Comments: If the judicial disciplinary agency becomes active and imposes a penalty, it is an exceptional case.
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| 35 |
Are there regulations governing conflicts of interest for the national-level judiciary? |
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35a:
In law, members of the national-level judiciary are required to file an asset disclosure form.
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| Score: |
YES |
NO |
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Comments: The Judicial Council is the collecting and monitoring authority.
References: Corruption Control Act 2002; The Judicial Council Act 1991; Judges' Code of Conduct 1998
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35b:
In law, there are regulations governing gifts and hospitality offered to members of the national-level judiciary.
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| Score: |
YES |
NO |
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Comments: Judges too are required to be transparent in this matter.
References: Corruption Control Act 2002; The Judicial Council Act 1991; Judges' Code of Conduct 1998
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35c:
In law, there are requirements for the independent auditing of the asset disclosure forms of members of the national-level judiciary.
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| Score: |
YES |
NO |
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Comments: All asset disclosure records submitted by judges are confidential, hence nobody, except the investigating officer, will have the access to them. The whole confusion is created by the ambiguity with regard to the right to privacy. No auditing is carried out in the name of ensuring secrecy.
References: Corruption Control Act 2002; Other Legislation related to Judicial Administration
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35d:
In law, there are restrictions for national-level judges entering the private sector after leaving the government.
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| Score: |
YES |
NO |
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Comments: Ex-judges have employment restrictions for the government service only, except as to serve as chairperson in the National Human Rights Commission. As far as the private profession is concerned, the only restriction is that they cannot practice law as the defense lawyer.
References: The Interim Constitution of Nepal 2007, Articles 106 (2) and 131 (1) (A)
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35e:
In practice, the regulations restricting post-government private sector employment for national-level judges are effective.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments:
References: This is not applicable because there is no restriction in relation to private sector employment, except for private law practice. There are no known cases of ex-judges practicing law as defense lawyers.
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35f:
In practice, the regulations governing gifts and hospitality offered to members of the national-level judiciary are effective.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: Even though they exist in law, the regulations governing gifts and hospitality are not enforced effectively.
References: Judicial Council Legislation
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35g:
In practice, national-level judiciary asset disclosures are audited.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: This is not applicable because auditing is not done.
References: Legislation relating to Corruption Control and Judicial Administration
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| 36 |
Can citizens access the asset disclosure records of members of the national-level judiciary? |
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36a:
In law, citizens can access the asset disclosure records of members of the national-level judiciary.
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| Score: |
YES |
NO |
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Comments: This is not applicable because access is restricted.
References: Legislation relating to Corruption Control and Judicial Administration
Peer Review Comments: It is kept confidential.
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36b:
In practice, citizens can access judicial asset disclosure records within a reasonable time period.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments:
References: This is not applicable. There are no such requirements.
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36c:
In practice, citizens can access judicial asset disclosure records at a reasonable cost.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments:
References: This is not applicable. There are no such disclosure requirements.
Peer Review Comments: It is kept confidential.
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