Nepali Legal System · Chapter 5
Study notes aligned to the official NEB syllabus.
A source of law means a place where a court finds the rules it must apply. The Nepali legal system takes its rules from several recognised sources.
The highest source is the Constitution of Nepal 2015. It is the fundamental law of the land. Every other law must agree with it. Suppose an Act of Parliament clashed with a fundamental right. The courts could then declare that Act void as far as it clashes.
The next source is legislation (ऐन). Legislation means the Acts passed by our law-making bodies. These are the Federal Parliament, the Provincial Assemblies and the local assemblies. The rules and bylaws made under those Acts are legislation too. The Muluki Civil Code 2074 is one example.
The decisions of the Supreme Court are also a binding source. When the Supreme Court interprets a law, that reading binds all courts and bodies. This gives Nepal a working system of precedent (नजिर). Precedent means that a settled decision guides later cases. Once the Supreme Court explains what a provision means, every lower court must follow that explanation.
Custom and usage (प्रथा) is another source. A long-established custom is recognised if it does not go against written law. The courts also use the general principles of justice, equity and good conscience. These are applied where the written law says nothing. Ratified treaties are enforceable as Nepali law under the Nepal Treaty Act. In the past, the Hindu Dharmashastra and religious texts were a major source. They still influence family law and personal law today.
The Nepali legal system has a written constitution as its supreme law. Any law that does not agree with the Constitution is void as far as the clash goes.
It is a mixed or hybrid system. This means it carries marks from more than one tradition. It shows the Hindu legal tradition. It also shows both the common law family and the civil law family. Like the common law, it follows binding precedent. Like the civil law, it now rests on full codes. Those codes are the Muluki Civil Code and the Muluki Penal Code 2074. Think of a judge deciding a property dispute. The judge applies the Code, which is the civil law style. The judge also follows Supreme Court precedent on how to read that provision, which is the common law style.
It has an independent judiciary headed by the Supreme Court. The Supreme Court holds the power of judicial review. Judicial review means the power to test laws against the Constitution. Since 2015 the system is organised on a federal basis. Law is made at three levels: federal, provincial and local. The Constitution also declares the state secular. It guarantees fundamental rights that can be enforced in court.
Under the Constitution of Nepal 2015, the regular courts form a three-tier pyramid.
At the top sits the Supreme Court (सर्वोच्च अदालत) in Kathmandu. It is the final court of appeal. It is also the final interpreter of the Constitution. It has extraordinary writ jurisdiction to enforce rights (Art. 133). A writ is a special order of the court that protects a right. The Supreme Court also has the power to lay down binding precedent (Art. 128).
Below it are the seven High Courts (उच्च अदालत). There is one High Court for each province. Below them are the seventy-seven District Courts (जिल्ला अदालत). There is one in each district. These are the courts where most cases start. A court where a case starts is called a court of first instance.
Here is how the pyramid works. A theft case is tried first in the District Court. If a party is not happy, that party can appeal to the High Court of the province. In the cases the law allows, the matter can finally reach the Supreme Court.
The Constitution also allows other courts, tribunals and judicial bodies to be created by law. These include special courts and quasi-judicial tribunals. The Constitution also provides a judicial committee (न्यायिक समिति) at each local level (Art. 217). This committee settles certain local disputes. It does so largely through mediation.
Not every dispute needs a full court trial. Alternative Dispute Resolution (ADR, वैकल्पिक विवाद समाधान) offers other ways to settle disputes. These ways are quicker, cheaper and less of a fight than a court case. Nepali law provides for them.
Negotiation is the simplest. The parties settle directly between themselves. For example, two businesses simply agree to split a disputed cost.
Mediation (मेलमिलाप) uses a neutral third person. This person is called a mediator. The mediator helps the parties reach their own agreement. The mediator does not impose any decision. Mediation is governed by the Mediation Act 2068 (2011). Courts may send suitable cases to mediation. The local judicial committees rely on it heavily. For example, they use it to settle a neighbours' quarrel over a shared wall.
Arbitration (मध्यस्थता) is used mainly for business and contract disputes. It is governed by the Arbitration Act 2055 (1999). The parties agree to let an arbitrator hear the matter and decide it. The arbitrator's decision is called an award. The award is binding and can be enforced much like a court judgment. This is why large construction contracts usually contain an arbitration clause.
Conciliation and settlement before the court are further options. All these methods ease the load on the courts. They also give the parties a greater say in the result.
The four subtopics of this chapter describe one working system.
The sources tell a court where to find the law. They run from the Constitution of Nepal 2015 at the top, down through legislation, precedent and custom. The characteristics explain the mixed nature of the system. It is codified like a civil law system. It also follows precedent like a common law system. It has an independent judiciary and a federal structure. The court hierarchy provides the institutions that apply the law. It rises from the District Courts, through the High Courts, to the Supreme Court. The ADR mechanisms offer a faster, cheaper route for disputes that do not need a full trial.
One example shows them working as one. Suppose two neighbours fall into a boundary dispute. The rule is found in the sources, in the property provisions of the Muluki Civil Code 2074. The dispute may first go to the local judicial committee for mediation, which is an ADR mechanism. If that fails, it moves through the court hierarchy from the District Court upward. All of this happens within a system whose supreme law is the Constitution. So sources, characteristics, courts and ADR are not four separate topics. They are four views of the one Nepali legal system.