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A large number of reforms have been initiated in Nepal since the Constitution was passed in September 2015 following a prolonged debate. Facing the significant number of approx. 100 ethnic groups and around 50 languages, the political culture is characterised by painstaking negotiations and complex procedures. A new parliament was elected at the end of 2017, leading to the formation of a new government during the reporting period. Its relatively stable majority promises a longer period in office than has been the case in the past.
Successful implementation of the provincial and local elections, which brought progress to the plans for local administrative structures, made an important contribution to implementing the federal state structure required by constitutional law. The parliament took an important step towards affording the fundamental, constitutional rights by passing the necessary sub-constitutional legislation on time within the three-year period after the Constitution entered into force. Important aspects in this process were the introduction of a Civil Code, a Criminal Code and a Code of Criminal Procedure to replace the Muluki Ain – a complex code of civil and criminal law that has been in place for more than 55 years.
Funded by the Federal Foreign Office, the project to strengthen rule of law and democracy continued in 2018. Cooperation with the Nepalese partner, the Nepal Law Society, focused on training courses for judges and other legal practitioners based on a programme that was jointly developed by Nepalese and German judges. The issues addressed in this context were the mechanisms applied in constitutional disputes, the independence and credibility of the judiciary and the role of courts of higher instance in the assertion of fundamental rights.
The events were held in two blocks in Kathmandu, Biratnagar, Janakpur, Pokhara and Nepalgunj. Besides the German experts the speakers included a number of judges from the Supreme Court of Nepal. Judges from the courts of first and second instance took part in the events. There was significant interest in a comparative presentation of German law, especially in issues of federalism and the independence of the judiciary. The lively discussion of these individual topics during the events reflects the challenges inherent to the current process of transformation and transition. The purpose of sharing views was also to promote necessary acceptance for the reforms.
In addition, the IRZ joined with the Nepal Law Society to organise a workshop for judges, public prosecutors and police officers on the implications of constitutional law for criminal law. The main focus in this regard was on how the various stakeholders interact and respect fundamental rights during the individual phases of a criminal procedure in accordance with the principles of rule of law.
Foci of Activity in 2018
Administration of Justice
Training courses for judges in Kathmandu, Biratnagar, Janakpur, Pokhara and Nepalgunj on the role of the judiciary in view of the implications of constitutional law
Workshop on how to apply the new provisions of substantive and procedural criminal law with due consideration of the principles of constitutional law
New approaches to continue the counselling will be discussed following completion of the ongoing project to implement the Nepalese Constitution.
Since the Constitution was passed in 2015, nine years after the end of the civil war, Nepal has been going through a political change process with the goal of implementing the required constitutional law stipulations in the judiciary system. The Constitution provides for a federal state structure, the introduction of a two-chamber parliamentary system and the separation of state and religion. Significant improvements also relate to the citizenship law.
The reform process regularly comes to a standstill due to various political conflicts, resulting in only small steps towards realising fundamental new developments.
The project to strengthen the rule of law and democracy, which has been running since April 2016, was continued in 2017 focussing on training legal practitioners in the judiciary. During a working group meeting in August, Nepalese and German experts developed a training programme for legal practitioners covering the mechanisms in constitutional law disputes, the independence and credibility of the judiciary and the role of the higher courts in the enforcement of fundamental rights. These training courses are planned for five different regions.
In addition, IRZ works with Nepalese judicial institutions as part of its bilateral cooperation and supports, for example, study trips of the Supreme Court on topics such as “Legal case processing” or “Court internal mediation”.
Foci of Activity 2017
Administration of Justice
Working group meeting of German and Nepalese experts to develop a training programme for judges in Kathmandu
Expert talks with the Judicial Academy on the responsibilities and content for basic and advanced training of judges in Kathmandu
Study trip of the Supreme Court of Nepal to Berlin on the topics of “Case resolution techniques and case processing”
Study trip of the Mediation Council of the Supreme Court of Nepal to Berlin on the topic of “Court internal mediation”
The current project to implement the Nepalese Constitution will continue in 2018 and will provide further training of legal practitioners at central and local levels in order to deepen their knowledge of the new regulations which are relevant for their work.
Visit to the Ministry for Federalism and Local Development: Dr. Matthias Hartwig, Sieglinde von Wasielewski and Angela Schmeink, IRZ; Mohan Gurung, Secretary of State; Dr. Hari Paudel, Joint Secretary (from left to right)
Legal Policy Starting Point
Since the Constitution was passed in 2015, the Government of Nepal has endeavoured to implement the constitutional law stipulations into the rule of law and the judiciary. The Constitution provides for a federal state structure which constitutes a considerable challenge for Nepal as a former kingdom and creates a significant requirement for new legislation in central areas of the law.
Significant new developments relate to the newly created status as a secular state, nationality law, the judicial system and inclusion. The reform process regularly comes to a standstill due to various political conflicts, in particular because members of ethnic minorities do not consider their protection to be sufficiently safeguarded in the constitutional law provisions. At the start of 2016, the Constitution was amended by providing a certain number of parliamentary seats for representatives of the Terai and establishing consideration for ethnic groups in the configuration of electoral districts and access to the civil service. However, tensions in the country still continue. Further constitutional law modifications are in discussion.
The IRZ has been advising Nepalese partners from the judicial field since 2012 and realised a consultancy project on the process of constitutional legislation in recent years with funding from the German Federal Foreign Office. A subsequent project was initiated to support the strengthening of the rule of law and democracy in the implementation of the new Constitution which is funded by the German Federal Foreign Office and started in April 2016 for a term of two years. The local project partner is the Nepal Law Society, a charitable, independent non-governmental organisation dedicated to the rule of law, an independent judiciary, human rights, the promotion of women and minorities, as well as decentralisation and the development of local self-administration. Together with this partner, the IRZ organises measures for the exchange of experts between German and Nepalese lawyers in order to discuss different legislation projects for the implementation of the constitutional law stipulations. In addition, further training measures are intended for different parties applying the law in the judiciary, the sphere of justice, the parliaments, the government structure and the ministries in Kathmandu and in various rural regions.
The project started with the constituting meeting of the “Advisory Committee” in April in Kathmandu, which views itself as the body for the conceptual and political steering of the project. This Committee comprises high-ranking representatives from different institutions which play an important role in the implementation of the constitutional law stipulations, e.g. parliamentarians of various parties or the management level of the Ministry of Justice and the Ministry of Federalism.
Once the sets of rules which came into question had been identified and conceived by the Nepalese side, initial expert consultations took place in early August 2016 in Kathmandu. In the course of this mission, two German lawyers, the IRZ and various Nepalese experts worked on specific draft legislation. This related to the establishment of a national commission for the allocation of resources and finance, as well as regulations on local self-administration. The discussions revealed the need for clarification on legal policy ideas with regard to the federal structure. In a later project phase, the exchange amongst experts was continued. In addition, legislative projects for local self-administration at the provincial and local council level were identified as potential project areas.
Strategic reform programmes have been implemented in Nepal for several years now in order to develop the judicial system into an independent, competent and efficient system that is accessible to citizens. In this context, the IRZ provided support for a study trip for an international exchange on „best practice” in the course of the bilateral cooperation, during which representatives of the Nepalese Supreme Court visited the USA, France, Great Britain and Germany. In Berlin, Nepalese judges raised current issues on the judicial and federalism reforms in discussions at the Bundesrat and the Berlin Higher Regional Court.
In 2016, the IRZ organised an internship programme in English for civil judges and commercial judges for members of its partner states for the first time. Two judges from Nepal successfully completed this programme.
Foci of Activity 2016
Civil and Commercial Law
Participation by two judges in the IRZ’s internship programme for civil judges and commercial judges in English
Constitutive meeting of the “Advisory Committee” in the project for the implementation of the Nepalese Constitution in Kathmandu
Specialist discussions in Kathmandu with key persons from Parliament, the ministries and the courts on project topics
Expert consultations in Kathmandu on the allocation of resources and finance as well as on rules for local self-administration
Study trip by a delegation from the Supreme Court to the USA, France, Great Britain and Berlin on „best practice” in the judicial systems with the support of the IRZ
The current project for the implementation of the Nepalese Constitution will be continued until 2018. This includes advice on further legislation projects and the further training of legal practitioners at central and local levels in order to deepen their knowledge of the new regulations which are relevant for their own work.