King Amshuverma (6th Century AD) introduced unwritten laws of administration, land reform and monetary system. With few exceptions of written laws such as King Jayasthithi Malla’s (1382–95AD) Manav Nyayashastra (Civic Laws – a legal and social code strongly influenced by contemporary Hindu principles), King Ram Shah’s (Chhabish Thiti (26 Commandments), the first written law was the Muluki Ain (Civil Code) 1854AD introduced by Prime Minister Jang Bahadur Rana, after his personal exposure to the Napoleon Code and the Common Law System while he toured Europe in 1850. The Nepalese Judicial mechanism remained under the clutches of the reigning rulers as The Royal Court until 1950.
The Modern Nepal’s Independent Judiciary began with establishment of the Supreme Court as Pradhan Nyayalaya in 1950, which envisaged the Supreme Court as the guardian of law. It also guaranteed independence of judiciary and the law above the king. In 1963, king came into power controlling the executive, legislative and partially the judiciary through its supreme power to “Review Cases” decided by Supreme Court known as “Hukum Pramangi” (Order of the Crown). The 1990 revolution reestablished democracy in Nepal and promised an independent judiciary. The legislative and executive branches of the governance ceased to function in 2002 after dissolution of the parliament and rise of direct rule of the King from 2005 to 2006. Judiciary remained the sole independent authority in Nepal from 2002 to 2008 in absence of a Legislative and an Executive based on a popular will.
In 1996 the Communist Party of Nepal (Maoists) or the terrorists launched an armed revolution in Nepal with a new notion of Judiciary, a barbaric people’s court, which has its own unwritten laws and so-called judges issuing capital punishment of severe form-the death penalty. The constitution assembly elections of April 2008 validated a Guerilla Government.
“The main agenda of the SPA and the Maoists was to hold a Constituent Assembly (CA) election, with the primary responsibility of drafting and promulgating a new constitution defining the future political system in Nepal. The interim constitution, adopted on January 15, 2007, expressed full commitment to democratic ideals and norms, including competitive multi-party democracy, civil liberties, fundamental human rights, adult enfranchisement, periodic elections, press freedom, an independent judiciary, and the rule of law. The interim constitution also guaranteed the basic rights of Nepali citizens to formulate a constitution for themselves and to participate in the Constituent Assembly in an environment free from fear. The interim constitution transferred all powers of the King as head of state to the prime minister and stripped the King of any ceremonial constitutional role. Under the interim constitution, the monarchy was abolished by the first meeting of the Constituent Assembly. The interim Parliament was a unicameral house”
The April 2008 Elections and the first meeting of Constitution Assembly ousted the King. With the Communist Party of Nepal (Maoist) CPNM in the power, steps have been taken every now and then to regulate the judiciary by them, thus putting the independent judiciary in a danger. CPNM came into a power play with its written commitment with major seven parties, where it basically agreed in dissolving its Nepali Janjaweed or Young communist league (YCL) which was established in 2007, returning seized property and refraining from taking arms. CPNM has failed to abide all of these three notions, let alone other clauses of the SPAM Agreement. In April 2008, the Maoists won in the elections with majority. During elections, the Maoists and their allies committed several crimes against humanity including kidnapping, killing, extortion and forced disappearance of people around the nation. Even after the elections the Maoists are still involved in grave human rights violation across the nation. The Maoist has taken over the nation through intimidation, threatening the general public and killing and kidnapping people. The Maoists has been openly threatening people and continue their atrocities though their armed militia and armed youth wing YCL which has been taking action against people who were against the Maoists in anyway in the past. In August 2008 the leader of the terrorist Maoists became the Prime Minister, The Maoist chairman has openly challenged the rule of law by having armed militia around him.On August 16, 2008 after the Maoist chairman was declared the prime minister, the Maoists thrashed a public in eastern Nepal for no reason for three hours “to celebrate their victory”. The Maoists and YCL are still involved in killing, kidnapping and torturing people. CPNM continues its atrocities, kidnapping, killings, extortion and poses a threat to people from every field. CPNM has been continuing its excesses through its sister organizations Young Communist League (YCL), Janatantrik Tarai Mukti Morcha (JTTM), Madheshi Jana Adhikar Forum (MJF), Madhesi Tigers (MT), Janatantrik Kirat Mukti Morcha (JKMM) etc. The Maoists have revived and continued their People’s Court across the nation and they are implementing their decisions and taking action against the people who were against tem in any way. On August 14, 2008 the Maoist Supreme Commander Prachanda was elected as the Prime Minister with support from MJF, clearly establishing CPNM and MJF alliance pre and post elections and further strengthening the fact that MJF is a splinter group of CPMN or a breakaway faction. On January 2009, Maoist Leaders repeatedly threatened over the media that they are going to control the governance if any effort were made to topple their government. Meanwhile, their capital punishment continues, property still being seized and their splinter groups still killing innocent public, human right defenders and journos.
Amidst this entire crisis, Judiciary remains intact and is committed towards protection of independence of judiciary.
Parliamentary Hearing Committee
For the first time a Parliamentary Hearing Committee quizzed the Supreme Court Chief Justice Kedar Prasad Giri for his post for the first time in history in October 2007. Though the PHC hearing was itself controversial, a trend was set to make judiciary accountable to Parliament. In January 2009, 10 recommended Supreme Court Judges were quizzed by the PHC.
One of the goals set by the CJ was to implement an e-judiciary. The concept was primarily set up by preceding justice. During the term of CJ Giri, judiciary has been successful to link all courts via networking, created online case status and tracking system, online cause-list of cases, a legal information system to name a few which has promised a swift and prompt justice delivery for now and future. Administrative tasks and applications are being made online. In a few years to come, when the basic judicial electronic infrastructure has been fulfilled, backlogged cases will be reduced to a very few numbers. These are but just a few highlights of the golden era of judiciary.
The Golden Era of Nepalese Judiciary
To ensure the continuation of the fast paced development of Nepal’s judiciary or the golden era of Nepalese Judiciary, which is being developed to make it on par with the global standards of judicial systems, the subsequent Chief Justices Hon. Min Bahadur Raimajhi, Hon. Anup Raj Sharma and Hon. Ram Kumar Prasad Shah have been working together in the e-judiciary project.
Challenges and Obstacles
There are still some shortcomings in the system that is being developed. However, there are major obstacles to its development as well. The lack of power supply, ongoing violence, by YCL and factions of CPNM, heightened insecurity, destruction of infrastructures, forced exile of Pahade judicial employees from Terai region by the extremists, murder of Pahade government employees by the extremists and above all the parallel existence of so-called people’s court which has been executing individuals and imposing deterrent justice system.
Winds of Change
Petty civil cases can be resolved by individuals through alternate means of justice such as arbitration, mediation and reconciliation, which have already begun in some districts. Forms could be developed online for parties and lawyers for administrative tasks such as court date calendar, rescheduling, applications, submission of fines, fees, penalties and court fees. Real-time case status update can be generated from one click on the internet. Parties to the cases are already being alerted prior to the case hearing via SMS, email and phone. Real time case list and hearing schedules are already displayed on hourly basis on computer monitor and TV screens at the court premises in the lobby, chamber, canteen, the Bar units and wait benches.
2008 Annual Report
The 2008 Judiciary Annual Report cites that expected outcomes could not be gained in the field of case settlement because of the security situation, lack of proper human resources, the Constituent Assembly elections in April 2008 and strikes held in different places directly affected the court procedures including summons, land measurement, implementation of the court verdict, punishment and others. Moreover, the movement in different districts of eastern and mid-terai, where the percentage of cases were high, was badly affected because of the unfavorable security situation, the report mentions.
There is an immediate need of a strict Judicial Decision Implementation Unit (judicial police) for the purposes of implementation of directives, decisions and orders of the courts. The unit can also speed up the process of recovery of revenue. An elaborated Supreme Court complex is another need with modern infrastructures and facilities. The districts and appellate courts around the nation need to be upgraded with modern technologies in order to materialize the notion of swift judiciary. The selection criteria and procedures of permanent and temporary judges in the district courts also need to be revamped.