Prologue (Judicial Council Act 2073)

The Judicial Council Act was enacted in Bhadra 2073 B.S. to amend and consolidate the legislative framework relating to the Function, Duty, and Power of the Judicial Council in Nepal.

The Preamble of the Act states that the prevailing legislation deals with the function, duty, and power of the Judicial Council to provide recommendation and counseling in the matter of appointment, transfer, disciplinary action, termination, and other issues relating to judicial administration.

Attributes and Features

Judicial Appointment Records

The Judicial Council must create and maintain records of Nepali Citizens eligible for the appointment of a Judge following the Constitution of Nepal. They have the authority to get details from the Supreme Court, MOLJPA, Judicial Service Commission, Office of the Attorney General, Nepal Bar Council, etc.

They have the discretion to gather information for individuals eligible to be judges or those who have previously served as Judges or Additional Judges.

Such records must be maintained by the Secretary of the Judicial Council with confidentiality.

Appointment of Judges

Before a month of the retirement limit of a Justice of the Supreme Court, the Judicial Council recommends a replacement. A recommendation must be made by the Judicial Council within a month of vacancy in the Supreme Court for reasons other than age.

For Chief Judges or Judges of the High Court, a recommendation can be made within three months of the Vacancy.

The Judicial Council must follow the principles of Proportional Inclusion as per the Constitution of Nepal during the process of recommendation of candidates. The Criteria for Appointment are:

  1. Qualify to be a judge as per the Constitution and the law.
  2. Have the necessary seniority, experience, knowledge, efficiency, honesty, impartiality, professional conduct, and moral conduct, and have contributed positively to justice and law.
  3. Have their names in the Judicial Appointment Record
  4. For District Judges, recommended by the Judicial Service Commission as per the Constitution.

After the recommendation for the position of Justice of the Supreme Court, the recommendation caused the beginning of the Parliamentary Hearing Procedure.

If the legislature declares the individuals as qualified, then, the Judge is recommended to the President for appointment.

Ineligibility to be a Judge

  1. Anyone who has been convicted by a court for serious crimes like corruption, rape, human trafficking, drug trafficking, money laundering, passport misuse, kidnapping, and other crimes involving moral wrongdoing.
  2. Individuals who have been punished for professional misconduct and haven’t completed two years since their punishment.
  3. People who have been dismissed from their jobs and are disqualified from working in the government or public institutions in the future.
  4. If someone has received an official reprimand according to the rules of their service and hasn’t completed one year from the date of that reprimand, or if their promotion or salary increase has been withheld during this period.
  5. Individuals disqualified according to Article 291 of the Constitution.
  6. Anyone who has been suspended as per federal law.
  7. Those who haven’t completed two years from the date they received a warning according to Section 14.
  8. Individuals blacklisted under the law.
  9. Someone who becomes a member of a political party at the time of appointment.
  10. People who are declared insolvent.
  11. Those with mental disorders.

District Court Judges

If a vacant position exists for the District Judge, then, the Judicial Council must conclude the amount of Vacant Positions throughout Nepal and those that will be vacant immediately or by the end of Chaitra.

Then, they must request the Judicial Service Commission to recommend suitable candidates to fill such positions.

Article 149 of the Constitution has mentioned that 40% of seats must happen through the Open Competitive Examination, 40% through the Open Competitive Exam of Officers with 3+years experience in Gazetted Second Class of Judicial Service, and 20% through seniority, qualification, and competency of Gazetted Second Class Officer with 3 years of experience in the post.

Functions of Judicial Council

The Judicial Council has the following Functions in Nepal:

  1. To make recommendations or provide counseling on the issues of judicial administration,
  2. To carry on or to cause to carry on study and research in the subject of judicial administration,
  3. To give necessary direction to the concerned authority in the subjects including curriculum about training and instruction of the Judge,
  4. To draft and enforce a Code of Conduct to be abided by the Judges,
  5. To perform other prescribed functions.

Members

Article 153 of the Constitution of Nepal has provisioned for a Judicial Council which consists of the following members:

  1. Chief Justice as Chairperson
  2. Federal Minister for Law and Justice as Member
  3. Senior Most Judge of Supreme Court as Member
  4. One Jurist nominated by the President on the recommendation of the Prime Minister as a member
  5. Senior Advocate or advocate with at least twenty years of experience appointed by the recommendation of the Nepal Bar Association as a Member.

Secretary of Judicial Council

Section 36 of the Act has provisioned for a Gazetted Special Class Secretary of Nepal Judicial Service who acts as the Administrative Chief of the Judicial Council. Its Functions are as follows:

  1. To implement or to cause to implement the decision made by the Judicial Council,
  2. To keep the record to be remained in the Secretariat of the Judicial Council in a systematic and secure manner by updating it,
  3. To allocate the functions to the employees of the Judicial Council and to assign them to work,
  4. To carry on monitoring, control, and supervision of the activities of the Secretariat of the Judicial Council,
  5. To give information on the decision of the Judicial Council to the concerned person or body,
  6. To make contracts and coordinate with the Government of Nepal and other concerned bodies as per the requirements,
  7. To perform other functions as prescribed by the Judicial Council.

Epilogue

Judicial Council Act 2073 consists of 42 Sections concerning the function, power, and duty of the Judicial Council in matters of appointment, transfer, legal action against Judges, and much more.

The Act has established basic criteria for the appointment of Judges in a competent court along with the responsibility of the Judicial Council.

Cite

Pokhrel, Aupson. “Judicial Council Act 2073 – the #1 Encyclopedia of Nepali History.” Encyclopedia of Nepali History, 14 Oct. 2023, itihasaa.com/acts/judicial-council-act-2073.