Fundamental Rights And Judicial Review In Nepal

Author : Sudarshan Gyawali
Publisher :
ISBN 13 :
Total Pages : 0 pages
Book Rating : 4.:/5 (137 download)

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Download or read book An Assessment of Judicial Independence In Nepal written by Sudarshan Gyawali and published by . This book was released on 2023 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: The administration of Justice is one of the primary functions of the state. The Constitution of Nepal has clearly entrusted the responsibility of the administration of Justice to the Judiciary. The Judiciary is one of the institutions on which rests the noble edifice of democracy and rule of law. It is the Judiciary that is entrusted with the task of keeping every organ of the state within the limits of the power conferred upon it by the Constitution and the laws thereby making the rule of law meaningful and effective. In every democratic state, the Judiciary is the last resort for safeguarding people's rights. It facilitates political stability and fairness for the development of a healthy and sound economy. This Judicial should be Independence and being accountable to the people and nation is an essential element. Judicial Independence means it is free from other organs of the state, especially the executive and legislative bodies. It must be free from power and pressure or other undue things. Judicial Independence is the doctrine that the decisions of the Judiciary should be impartial and not subject to influence from private or political interests. Simply stated, Judicial Independence is the ability of a Judge to decide a matter free from pressure or inducements. Similarly, accountability of the judiciary means the decision of the judges should be responsible and accountable to the people and the nation. It should be better to establish the system of the judge appointment mechanism body's head the judiciary council should be legal back rounded people's representatives either from the upper house or the lower house. The present Constitution of Nepal has envisioned the Judiciary as the guarantor of fundamental rights and guardian of the Constitution. For this, the preamble of the constitution also makes a constitutional commitment for an independent accountable Judiciary and the concept of rule of law as well as democratic values and norms and some structural and functional independence has been accorded to the Judiciary. Many important provisions have been incorporated in the constitution which is suitable for an independent and accountable Judiciary. Despite those provisions, new provisions have also been laid down in this constitution. Some of the Constitutional experts raised their voices that the decisions are not accountable and responsible to the people and the nation. Similarly, the power to punish for contempt is also recognized as one of the indicators of judicial independence. It is regarded as an essential element for maintaining the impartiality and independence of the judiciary. But this power should not be used as a weapon to prevent a judge or court from ever being the subject of comment. Healthy criticism should be allowed. The public must have a right to discuss the judicial administration, and conduct of judges. Contempt of court does not restrict the freedom of speech. But it should be constructive, not destructive. Independence of the judiciary does not mean that the judges are masters of the people. The judges should think that they are the servant of the people; judges must be accountable to the people. Judges should promote healthy comments. This is to be taken as a last resort to protect judicial independence. The mechanism of judge's appointment body head of the judicial council should be established by legal back grounded people's representative either from the lower house or the upper house. In this scenario, it has become the need today to conduct the study by addressing various issues relating to Judicial Independence.Taking into account all these aspects, this work examines the concept of Judicial Independence in Nepal. This has been done in the light of the general understanding of the concept of Independence and accountability of the Judiciary and its applications are in different democratic countries. The judicial approach toward the concept of Judicial Independence has been incorporated in this work. It has also included the constitutional and statutory provisions about the Judicial Independence. It focused on global standards of Judicial Independence and accountability basic component of it and tried to compare them with the Nepalese constitutional Framework.