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Legal System IntroductionThere is an existing court system in Nepal, and there is no reason to suppose that its basic structure will be changed in the new constitution. There may be some reasons to make some changes in the way in which the powers to decide cases are divided between the different types of courts. Click here for a short list of the functions of courts. One topic that will perhaps be discussed is whether there should be a special Constitutional Court to deal with cases involving the constitution. A very important issue is the independence of the judiciary. This means that judges must be free from any sort of pressure in deciding cases - they must not be influenced by the government or by business or political parties, but must decide cases according to the law. The judges are one of the guardians of the constitution and must protect it in their decisions from government and others who want to evade it, violate it or change it unlawfully. They also often stand between the individual and the government, and may be tempted to decide in favour of government if they fear dismissal or other penalty for deciding against it. A recent concern in many countries has been the accountability of the judiciary as well. All other public officers are supposed to be accountable - but there is a delicate balance between accountability and independence, especially in the case of judges. But independence must not be a shield for corruption, incompetence or personal vindictiveness. There is a concern in many countries that courts are expensive and slow. In Nepal there are various programmes of mediation - resolving disputes without the formal procedures of courts, through methods that try to get the parties to agree to a solution. There may be some discussion about whether such a system can, or should, be built into the constitution. This is an aspect of a wider important topic: access to justice. Another issue raised may well be that of prosecutions: who makes the decision to prosecute a criminal case before the courts? Is this decision sometimes made as the result of political considerations? If so, should the constitution try to prevent this? Are there situations in which political decisions are justified? Another decision that may sometimes be made for political reasons, and which perhaps should be insulted from politics, is whether to pardon a person who has been convicted of a crime. Links on this page will take you to some more material
There is a World Bank study called Comprehensive Legal and Judicial Development (2000) (edited by Rudolf V. Van Puymbroeck) which contains chapters relevant to many of the issues raised in this section of this website. You will find chapters on (among others):
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