139TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

CURRENT SITUATION AND ISSUES RELATING TO ETHICS AND CODESOF CONDUCT FOR JUDGES, WITH SPECIAL REFERENCE TO
THE CRIMINAL JUSTICE SYSTEM OF NEPAL
Bishnu Prasad Upadhyaya*1

I. BACKGROUND
The independence of the judiciary is a measure of a nation’s devotion to democracy and the rule of law.
To have an effective and competent criminal justice system, politicians and stakeholders of this system, i.e.
judges, prosecutors, and law enforcement officials, should perform their functions legally and ethnically.
Among others, detection of corruption and imposing suitable punishment on corrupt public officials,
and politicians is one of the pivotal duties of a criminal justice system. If judges, prosecutors and law
enforcement officials are involved in corruption the criminal justice system will perish. Where the justicesystem fails, impunity will prevail, badly affecting society and weakening democracy. The trust of the people
depends on judicial performance. Therefore, it is better to prevent such evils rather than provide remedies.
So, by using various guidelines, codes of conduct, norms, and standards, the state can run the criminal
justice system efficiently. These stakeholders are the main actors of the state, which must maintain the ruleof law and promote good governance. If they lack in their duties, society will be victimized by corruption,
impunity will increase and the morale of the people and their faith in the justice system will deferiorate.
Each and every nation stipulates legal mechanisms for its criminal justice system. The UN and otherinternational organizations provide international norms and standards for the proper operation of criminal
justice systems. Among others, judges, prosecutors and law enforcement officials are vital stakeholders of acriminal justice system. Therefore, the quality of their performance plays a prominent role. To ensure quality
performances, their qualifications, selection system, training, and codes of conduct are vital.

II. INTERNATIONAL STANDARDS AND NORMS
Important international standards to address standards and norms for judges, prosecutors and law
enforcement officials are outlined below.
1. UN Convention Against Corruption, 2003
Art 11(1) and (2) opine that State Parties shall take measures to strengthen integrity and to prevent
opportunities for corruption among members of judiciary and prosecutorial authorities, i.e. rules relating toconduct of members of judiciary and prosecutors.
2. Basic Principles on the Independence of the Judiciary, 1985
3.	Procedures for the effective implementation of the Basic Principles on the Independence of the Judiciary,
1989
4. Bangalore Principles of Judicial Conduct, 2002
5. UN Guidelines on the Role of Prosecutors, 1990
6. UN Codes of Conduct for Law Enforcement Officials, 1979

* Under Secretary, Legal and Judicial Reform Program, Supreme Court of Nepal.

313

RESOURCE MATERIAL SERIES No.80

III. NEPALESE JUSTICE SYSTEM
The judicial system has existed since the earliest times of Nepal’s history. Judges were appointed by
the king and they performed their duties as per the ethical norms and customs. After the promulgationof democracy in Nepal in 1950, the concept of an independent judiciary began. An independent judiciary,
separate prosecutorial system and separate responsibility of law enforcement official were introduced in
the development period of the 1950s. The Nepalese criminal justice system is more or less influenced
by the common law system. The criminal justice system operates through investigation, prosecution andadjudication.

A. Criminal Justice System Organizations(i) Judiciary: Supreme Court, Appellate Court and District Court for general cases and Special Court forcorruption cases.
(ii) Prosecution: Office of the Attorney General and its other subordinate offices located where Appellate
and District Courts are located; Commission of Investigation of Abuse of Authority (CIAA); otherauthorities as prescribed by law.
(iii) Law Enforcement: Investigation authority; hierarchical organizations of police force; Revenue
Investigation Authority; District Forest Office; Land Administration Office; District Administration Office;other Ministries; and other executive offices, along with the execution Branch of the District Court.
B. Corruption in Nepal
Corruption is a complex and multifaceted phenomenon with multiple causes and effects, as it takes on
various forms and functions in different contexts. The phenomenon of corruption ranges from single acts
prohibited by law to a way of life of an individual or groups. It is the misuse of public goods by public officials,
for private gain. This private gain is achieved by ignoring prohibitions against certain acts. This is the abuse or
misuse of public office and professional rights and duties for personal gain.
Corruption not only undermines ethical values and justice, it damages democratic institutions, national
economies and the rule of law. Corruption facilitates other forms of serious crimes, in particular transnationalorganized crime, human trafficking and fiscal crime such as money laundering.

1. Current Situation• In fiscal 2008/09 the Supreme Court had a total 18,564 cases. Among them 5,608 were decided and12,956 are under consideration. In total, in all courts, there are total 103,651 cases, among them
44,818 were decided and 58,833 are under consideration.
• The CIAA received complaints of corruption totalling 2,732. Among them 2,135 were investigatedand 597 are under investigation in fiscal 2008/09. Seventy cases were filed in the Special Court and28 cases were recommended for departmental action by the CIAA.
• The Special Court, the only the authentic body to hear cases related to corruption, has handled 254
cases related to corruption as of fiscal 2008/09. The Special Court has disposed 102 cases and 152
cases are under consideration. Six hundred and seventy cases of corruption are under considerationin other courts except the Special Court.
• In the judiciary, there are 223 working judges, 242 officers, and 3,247 assistant staff.
2. Corruption and Efforts Made to Control it in Nepal
The criminal justice system related to corruption control in Nepal has long made efforts. Legislation on control
of corruption, began in 1957 and legislation was enacted 2002. The main laws relating to corruption control are as
follows(i)

Prevention of Corruption Act, 2002
This Act has defined corruption as the following activities and penalizes it with fine and imprisonment.
•
•
•
•
•

314

Taking or giving bribes or agreeing to take bribes;
Public servants preparing wrong documents;
Making wrong translations;
Breach of confidentiality of question papers or changing the result of examinations;Public servants indulging in illegal trade and business;

143RD INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

•
•
•
•

Claiming a position which one does not hold;
Giving a false description;
Giving wrong reports;
Illegal acquisition of property.

(ii) The Commission for Investigation of Abuse of Authority Act, 1991
Commission for Investigation of Abuse of Authority Act, 1991 defines the abuse of authority as
improper conduct. Improper conduct denotes any of the following acts committed deliberately or
through negligence by a person holding public post
•
•
•
•
•
•

Refusal to undertake any work under one’s authority or undertaking any work outside of one’s
authority;
Not following mandatory procedures while making any decisions or giving instructions;
Use of authority vested in oneself for a purpose contrary to the relevant law, decision or
instruction;
Use of discretionary power with a malafide intention or selfish desire;
Shifting one’s responsibility by sending the work to be done by oneself to other officer;
Abuse of immunity, facility or concession associated with the post.

(iii) Anti-Money Laundering Act, 2008
This Act was recently enacted. The Act aims to prevent conversion of proceeds of crime into legalmoney. It establishes a department to administer the Act.
(iv) Good Governance Act, 2008
This Act aims to have good governance in the country.
(v) Public Procurement Act 2007
This Act aims to maintain competition and transparency in procurements by public bodies including
government bodies and government controlled and funded bodies.

3. Institutions involved in Corruption Control(i) Commission for the Investigation of Abuse of Authority (CIAA)The Commission for the Investigation of Abuse of Authority, publicly known as the CIAA, is aconstitutional body which serves as an investigating and prosecuting authority in corruption cases andthe watchdog authority against the abuse of authority. The Interim Constitution of Nepal, 2007, provides
for it in explicit terms in part 11, Article 120. According to the constitution, functions, duties and powersof the commission are as follows:•
Inquiry and investigation of improper acts or corruption by a person holding public office;•Recommendation for departmental action or any other necessary action against the person
who has abused authority by committing improper acts;•
Filing a case against a person alleged to have committed corruption.
(ii) National Vigilance Center
The National Vigilance Center (NVC) is a governmental body intending to control corruption andbring about good governance in the country. It is established under the Prevention of Corruption
Act, 2002. It functions under the direct control and supervision of the Prime Minister of Nepal. The
main objective of the centre is to play a preventive and vigilant role to ensure good governance bycontrolling delays, administrative and financial irregularities, mis-collection of public revenue and othermisdeeds that exist in the various steps of the government and public sector organizations.
(iii) Special Court
This court adjudicates the corruption cases filed by the CIAA. This is the court of first instance inrespect to corruption. Judges are deputed from the ordinary Appellate Court.

IV. QUALIFICATIONS FOR JUDGES
We think judges should be fair, competent, pure, disciplined, energetic, alert, courageous, andindependent. A good judge should not be lazy, greedy, over smart, over confident, angry, jealous or have anevil mind. So far as the Nepalese system is concerned, we can mention the following:315

RESOURCE MATERIAL SERIES No.80

A. Supreme Court Chief Justice
A judge working as a judge of Supreme Court for at least three years will be qualified for appointment as
Chief Justice.
B. Supreme Court Judge• Worked  as a judge of the appellate court or in any equivalent post of the judicial service for at least
seven years; or• Worked as a gazettted first class or above of the judicial service for at least 12 years; or• Practiced law for a minimum of 15 years as a law graduate advocate or senior advocate; or• Is a distinguished jurist who has worked for at least 15 years in the judicial or legal field.
C. Appellate Court Judge• Nepali citizen having a bachelor’s degree in law;
• Work experience as a district judge or gazetted first class of judicial service for at least seven years;• Practiced law as a senior advocate or advocate for at least ten years; or• Has teaching experience or conducted research thereon, or has worked in any other field of law or
justice for at least ten years.
D. District Court Judge• Nepali citizen having a bachelor’s degree in law;
• Work experience as a gazetted second class officer of judicial service for at least three years, or• Practiced law as an advocate at for least eight years.
E. Constituent Assembly Court Judges
It shall be constituted to resolve the complaints regarding elections. On the recommendation of the
Judicial Council, the Nepali Government will depute judges from among the Supreme Court judges.
Other judges of the Special Court and Tribunal should have a minimum of a bachelor’s degree in law andspecific experiences as prescribed by law.

V. SELECTION OF JUDGES
Judges should be individuals of integrity and ability with appropriate training or qualification in law,
without discrimination on the grounds of race, sex, religion, political or other opinions. According to
Nepalese legal provisions, the selection system is as follows:
1. Chief Justice: The President shall appoint the Chief Justice (CJ) on the recommendation of the Constitutional
Council. Before his or her appointment, he or she has to face a parliamentary hearing.
2. Other Judges of the Supreme Court: The Chief Justice shall appoint other justice of Supreme Court on therecommendation of the Judicial Council.
3. Chief Judge and other Judges of Appellate Court: The Chief Justice shall, on the recommendation of the
Judicial Council, appoint the Chief Judge and other Judges of the Appellate Court and District Court
Judges.
4. District Judges: The Chief Justice shall, on the recommendation of the Judicial Council, appoint District
Court Judges. In appointing a law graduate advocate to the post of District Court Judge, only a person who
has passed the written and oral examination conducted by the Judicial Council shall be appointed. This
provision is inactive due to lack of legal provisions.
5. Judges and Members of Other Special Courts and Tribunals: They will be selected on therecommendation of the Judicial Council by the Nepal Government.
Before appointment, the Judicial Council fulfills various procedures i.e. collecting information of eligible
candidates from different concerned offices, screening, making their roster and submitting it to the meetingof the Judicial Council. The Judicial Council Act and Regulations of 1990 stipulate procedural matters to befollowed.

316

143RD INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

VI. CODES OF CONDUCT FOR JUDGES
There is one Supreme Court; 16 Appellate Courts; 75 District Courts; one Special Court; one Labour
Court; one Administrative Court; five Revenue Tribunals, two Debt Recovery Tribunals; and other quasijudicial bodies which are involved in delivery of justice. Now, there are 223 judges working all over thenation in different tiers of the court system. The Interim Constitution of Nepal, 2007, the Judicial Council
Act 1990 and Rules, 2000 and Codes of Conduct for Judges, 2009 are a few significant laws and norms
compelling judges to work within their legal and ethical boundaries.
Delivering is a justice very respectable and honorable profession. People place a great deal of faith in judges.
If any question against arises in judges’ integrity, people’s belief will in justice will fail. Therefore, preventive
measures are more favorable than remedial treatment. For this reason the Nepalese judiciary introduced a
Code of Conduct for Judges in 1999. It was first effort to regulate the behaviour of judges. Though it functioned,
it couldn’t meet international standards and national necessities. Therefore, a national conference of judges
held in 2009 adopted a new Code of Conduct for Judges 2009, replacing old one. It is mainly based on The
Bangalore Principles of Judicial Conduct 2002. The main provisions of this Code can be mentioned as following:
•
•
•
•
•
•

Protection and promotion of the rule of law, human rights, constitutional values;
Practical assurance of a fair, impartial and transparent justice system;
Fair trial for protection of citizen’s rights;
Increase public faith in the justice system and place high value on the dignity of the judiciary;
To establish a respectable system of judicial duty as a responsible position;
The protection of personal and legal interests of judges.

A. Article 3: Independence
Principle
Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge
shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.
Code of Conduct
1 A judge shall exercise the judicial function independently on the basis of the judge’s assessment of
the facts and in accordance with a conscientious understanding of the law free of any extraneous
influences, inducements, pressures, threats or interference, direct or indirect, from any quarter orfor any reason.
2 A judge shall be independent in relation to society in general and in relation to the particular parties
to a dispute, which the judge has to adjudicate.
3 A judge shall not only be free from inappropriate connections with, and influence by, the executive
and legislative branches of government, but must also appear to a reasonable observer to be free
there from.
4 In performing judicial duties, a judge shall be independent of judicial colleagues in respect of decisions
which the judge is obliged to make independently.
5 A judge shall encourage and uphold safeguards for the discharge of judicial duties in order to maintainand enhance the institutional and operational independence of the judiciary.
6 A judge shall exhibit and promote high standards of judicial conduct in order to reinforce publicconfidence in the judiciary which is fundamental to the maintenance of judicial independence.
7. A judge shall be fully aware from the avoidance of humanitarian effect of criticism and praise while
delivering justice

B. Article 4: Impartiality
Principle
Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decisionitself but also to the process by which the decision is made.

317

RESOURCE MATERIAL SERIES No.80

Code of Conduct
1 A judge shall perform his or her judicial duties without favor, bias, or prejudice.
2 A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances theconfidence of the public, the legal profession, and litigants in the impartiality of the judge and of the
judiciary.
3 A judge shall, so far as is reasonable, so conduct himself or herself as to minimize the occasions on
which it will be necessary for the judge to be disqualified from hearing or deciding cases.
4 A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any
comment that might reasonably be expected to affect the outcome of such proceeding or impair the
manifest fairness of the process. Nor shall the judge make any comment in public or otherwise thatmight affect the fair trial of any person or issue.
5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge
is unable to decide the matter impartially or in which it may appear to a reasonable observer thatthe judge is unable to decide the matter impartially. Such proceedings include, but are not limited to,
instances where
5.1 The judge has actual bias or prejudice concerning a party;
5.2 The judge has prior personal knowledge of disputed evidentiary facts concerning the proceedings;
5.2 The judge previously served as a lawyer or was a material witness in the matter in controversy;or
5.3 The judge, or a member of the judge’s family, has an economic interest in the outcome of thematter in controversy:
Provided that disqualification of a judge shall not be required if no other judge can adjudicate the caseor, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.

C. Article 5: Integrity
Principle
Integrity and its implementation are essential to the proper discharge of the judicial office.
Code of Conduct
1 A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer.
2 The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary.
Justice must not merely be done but must also be seen to be done.

D. Article 6: Propriety
Principle
Propriety, and the appearance of propriety, is essential to the performance of all of the activities of ajudge.
Code of Conduct
1 All activities of judge shall fully consistent with integrity. A judge shall avoid impropriety and theappearance of impropriety in all of the judge’s activities.
2. As a subject of constant public scrutiny, observation, and supervision, a judge must accept personal
restrictions on his or her activities that might be viewed as unnecessary burdensome by a citizen orcommunity. In particular, a judge shall conduct himself or herself in a way that is consistent with the
dignity of the judicial office.
3. A judge shall, in his or her personal relations with individual members of the legal profession whopractice regularly in the judge’s court, avoid situations which might reasonably give rise to thesuspicion or appearance of favoritism or partiality.
4 A judge shall not participate in the determination of a case in which any member of the judge’s family
represents a litigant as a lawyer or is associated in any manner with the case.
5 A judge shall not allow the use of the judge’s residence by a member of the legal profession to receive
clients or other members of the legal profession.
6 A judge, like any other citizen, is entitled to freedom of expression, belief, association, and assembly,

318

143RD INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

but in exercising such rights, a judge shall always conduct himself or herself in such a manner as topreserve the dignity of the judicial office and the impartiality and independence of the judiciary.
7

A judge shall inform himself or herself about the judge’s personal and fiduciary financial interestsand shall make reasonable efforts to be informed about the financial interests of members of thejudge’s family.

8

A judge shall not allow the judge’s family, social, or other relationships improperly to influence thejudge’s judicial conduct and judgment as a judge.

9

A judge shall not use or lend the prestige of the judicial office to advance the private interests of thejudge, a member of the judge’s family or of anyone else, nor shall a judge convey or permit others toconvey the impression that anyone is in a special position improperly to influence the judge in theperformance of judicial duties.

10. Confidential information acquired by a judge in the judge’s judicial capacity shall not be used or disclosedby the judge for any other purpose not related to the judge’s judicial duties.
11. Subject to the proper performance of judicial duties, a judge may:
11.1 Write, lecture, teach, and participate in activities concerning the law, the legal system, theadministration of justice or related matters; or appear or participate in the discussion at a
public program relating to such subjects in own country or out of the country.
11.2 Serve as a member of an official body, or other government commission, committee or advisory
body, if such membership is not inconsistent with the perceived impartiality and politicalneutrality of a judge; or11.3 Engage in other activities if such activities do not detract from the dignity of the judicial officeor otherwise interfere with the performance of judicial duties.
12 A judge shall not practice law whilst the holder of judicial office. A permanent justice of Supreme
Court shall not represent any client at any level of court after his/her retirement.
13 A judge may form or join associations of judges or participate in other organizations representing theinterests of judges.
14 A judge and members of the judge’s family, shall neither ask for, nor accept any hospitality, donation,
gift, bequest, financial or physical benefits, and loan or favor in relation to anything done or to bedone or omitted to be done by the judge in connection with the performance of judicial duties.
15 A judge shall not knowingly permit court staff or others subject to the judge’s influence, direction or
authority, to ask for, or accept, any gift, bequest, loan or favour in relation to anything done or to bedone or omitted to be done in connection with his or her duties or functions.
16 Subject to law and to any legal requirements of public disclosure, a judge may receive a token gift,
award or benefit as appropriate to the occasion on which it is made provided that such gift, award or
benefit might not reasonably be perceived as intended to influence the judge in the performance of
judicial duties or otherwise give rise to an appearance of partiality.

E. Article 7: Equality
Principle
Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial
office.
Code of Conduct
1 A judge shall be aware of, and understand, diversity in society and differences arising from various
sources, including but not limited to race, colour, sex, religion, nationality, caste, disability, age,marital status, social and economic status and other like causes.
2 A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or
prejudice towards any person or group on irrelevant grounds.
3 A judge shall carry out judicial duties with appropriate consideration for all persons, such as theparties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any
irrelevant ground, immaterial to the proper performance of such duties.
4 A judge shall not knowingly permit court staff or others subject to the judge’s influence, direction or

319

RESOURCE MATERIAL SERIES No.80

control to differentiate between persons concerned, in a matter before the judge, on any irrelevant
ground.
5

A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words
or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to anissue in proceedings and may be the subject of legitimate advocacy.

F. Article 8: Competency and Diligences
Principle
Competence and diligence are prerequisites to the due performance of judicial office.
Code of Conduct
1. The judicial duties of a judge take precedence over all other activities.
2. A judge shall devote the judge’s professional activity to judicial duties, which include not only theperformance of judicial functions and responsibilities in court and the making of decisions, but also
other tasks relevant to the judicial office or the court’s operations i.e. court and its operation or
management, judicial instruction and research.
3. A judge shall take reasonable steps to maintain and enhance the judge’s knowledge, skills and personalqualities necessary for the proper performance of judicial duties, taking advantage for this purpose of
the training and other facilities which should be made available, under judicial control, to judges.
4. A judge shall keep himself or herself informed about relevant developments of international law,
including international conventions and other instruments establishing human rights norms.
5. A judge shall deliver reserved decisions in written form as possible, and perform all judicial duties
efficiently, fairly, and with reasonable promptness.
6. A judge shall maintain order and decorum in all proceedings before the court and be patient, dignified
and courteous in relation to litigants, witnesses, lawyers and others with whom the judge deals in
an official capacity. The judge shall require similar conduct of legal representatives, court staff andothers subject to the judge’s influence, direction or control.
7. A judge shall not engage in conduct incompatible with the diligent discharge of judicial duties.
Nepal’s Code of Conduct for Judges is very comprehensive. It has adopted all modern values andnorms. The main question relating to code is its’ implementation that there is no mention of inequality on
the basis of sexual orientation, participating in public hearings, having no right of presenting in court onbehalf of parties to Supreme Court justice after their retirement can be considered drawbacks. So, we cansay that to some extent it is different from the Bangalore Principles.

VII. ORGANIZATIONS INVOLVED IN MAINTAINING GOOD CONDUCT FOR JUDGES
The following institutions are involved directly and indirectly in maintaining good conduct by judges,
which will help to enhance the criminal justice system.
•

Parliament: to take action of impeachment against the Chief Justice and other Justices of theSupreme Court;•

Judicial Council: duties appointment, transfer, and taking disciplinary action;•

CIAA: investigation and prosecution of corruption cases;•

Judicial Service Commission: duties appointment, transfer, and taking disciplinary action against
judicial officers;•

Concerned Ministries and Police Headquarters: taking action against law enforcement officials inbreach of professional ethics.
Nepal is now in the process of peacekeeping and is in a transitional phase. After the second movementof the people, the desires of the people are increasing. The nation is suffering from impunity. Obviously,in this situation, to maintain the criminal justice system, conduct of judges, prosecutors, and law
enforcement official must be satisfactory. We have no separate codes of conduct for law enforcement
officials and other prevailing codes of conduct for judges and prosecutors are not implemented effectively.

320

143RD INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

VIII. EDUCATION AND TRAINING OF CRIMINAL JUSTICE PERSONNEL IN NEPAL
Education and training are required to impart the knowledge of jurisprudence and to enable the person
to apply the knowledge in delivery of justice. Training is learning method that improves ability to perform ajob. It is skill oriented and remedial in nature. Technological changes are making the job more complex anddemanding. The judicial system needed to raise skill levels and make employees versatile and adaptablethrough training and education. So, training is an important part of HRD efforts which provides positivechanges in knowledge, skills and attitudes. Training improves knowledge, skill and attitudes and enriches
employees’ moral and quality of performance. Training signifies the process of learning by practice the skills
necessary to discharge the functions.
Only after attaining a Bachelor of Laws degree from any recognized university, along with otherspecified qualification and experiences, are persons eligible for appointment as judges, prosecutors, and law
enforcement officials. Our LLB curriculum is developed so that students learn various subject matters alongwith justice and ethics. After appointment as judges they are taught about ethics and norms in the NJA. If
any judge shows interest in achieving any further degree in law, they are promoted from any university of
Nepal and out of the country.

(i) Kinds of Training
These are main types of training followed to achieve judicial excellence:(a) Pre service or orientation training;(b) Refresher training;(c) Job training;(d) Promotional training;(e) Remedial training;(f) Safety training etc.

(ii) Training Process and Features of Training
Determining training needs, specifying training objectives, making curricula and determining training
methods, conducting training of trainers, selecting trainees, developing training budgets, conducting training,and evaluating training are the main training processes followed by concerned training centres and the
National Judicial Academy. According to the nature of the job, various types of tools and techniques areused in training. Discussion, presentation, workshops, seminars, instruction, lectures; field visits, active
participation and study tours are a few mentionable features of training which enrich the quality and skill ofjudges and officers.
(iii) Role of Training Institutions
The National Judicial Academy is a statutory body charged with the task of improving the justice system
in Nepal through judicial education, training research, and dissemination of legal information. Much of its
efforts revolve around the training and education of judges, court staff, government attorneys and private
lawyers. Other institutions i.e. the Judicial Service Training Center, Administrative Staff College, National
Police Academy, Forensic Science Department and National and International Training Institutions are
involved to provide training to judges, prosecutors and law enforcement officials in justice related different
issues.

IX. PROCEDURAL LEGAL MECHANISMS TO REGULATE JUDGES’ ACTIVITIES IN NEPALThe Interim Constitution of Nepal, 2007; the Judicial Council Act, 1990; and Rules, 2000; and Codesof Conduct for Judges, 2009 are some vital laws and norms to guid judges’ activities and help them to act
ethically.
The Interim Constitution of Nepal, 2007 has specified responsibility to the Judicial Council for therecommendation of appointment, evaluation, transfer and removal from the job. Article 105(2) of theconstitution stipulates that a motion of impeachment may be presented before legislator parliament against
the chief justice or any other judge on the ground that he or she is unable to perform their duties for reasonsof incompetence, misbehaviour, failure to discharge the duties of their office in good faith, physical or mental
condition, and if a two thirds majority members passes the resolution, he or she shall ipso facto cease to hold321

RESOURCE MATERIAL SERIES No.80

office. The Chief Justice or judge shall not be deprived of the opportunity to defend him or herself.
According to Article 109(10) (C) The Chief Justice can remove a judge of the Appellate and District Courtin accordance with a decision of the Judicial Council for reasons of incompetence; misbehaviour; failure todischarge the duties of his her office in good faith; incapacity to discharge those duties due to physical ormental reasons; or for deviation from the task of dispensing justice. Such a judge shall be given a reasonable
opportunity to defend him or herself. For this purpose, the Judicial Council may constitute a committee ofinquiry for recording the statement of the judge, collecting evidence and submitting its findings thereon.
Judicial misconduct stipulated in the Judicial Council Act, 1990 Section 4A, looks similar to conduct
stipulated in Codes of Conduct. According to Section 9A, if any judge of an appeal District Court is foundguilty of corruption, cases will be filed against him or her in appellate court on behalf of the council by the
Secretary and other deputed officers of the council. We have one example of filing case in corruption. It is
how under consideration by Supreme Court of Nepal.
Article 120 (2) of the Constitution stipulates that an inquiry and investigation may be conducted, or caused
to be conducted by CIAA, against any official of a Constitutional Body removed from their office following an
impeachment resolution on the ground of misbehaviour, any judge removed by the Judicial Council on similar
charges after they are removed from office, in accordance with law. Judicial Council Rules, 2000 Rule 24 saysat the time of appointment, performance evaluation and transfer of the judges, the codes-abiding attitudes ofjudges shall be taken into consideration.

X. CHALLENGES RELATING TO CODES OF CONDUCT FOR JUDGES•

Monitoring of Codes of Conduct: When we observe all provisions of this code, it has included allprevalent modern provisions. It lacks one thing relating to its implementation. For its effective
implementation, the national judiciary should have to adopt effective mechanisms. No any single
word is mentioned in this code about its implementation. Rational observers show doubts about its
implementation. However, Judicial Council Rules, 2000 Rule 24 says at the time of appointment,
performance evaluation and transfer of the judges, the codes-abiding attitudes of judges shall betaken into consideration. In another way, we can assume that law has recognized the implementation
mechanism to some extent.

•

Self Monitoring: Commitment alone is not sufficient. Compliance must be visible. Rational observers
should see that these are fully applied. Judges must monitor and evaluate thier activities daily andimprove if any mistakes are made.

•Who can monitor? Monitoring of implementation of codes of conduct is a challenging issue. Persons
having a judicial mind or another judge are suitable personalities to monitor. The Judicial Council
headed by the Chief Justice is also proper institution. Section 4B of the Judicial Council Act shifts theduty of monitoring and evaluation of judicial duties and conduct of appellate and district court judges
to the chief judge of the Appeal Court and the Supreme Court judges. Monitoring and evaluation
duties relating to codes of conduct also should be shifted to those judges as stipulated by law.

•

Weak situation of security: In Nepal the security situation of judges, prosecutors, and judicial officers
is very weak. People give unnecessary pressure on a regular basis. Power, money and muscle areused to avoid the law.

•

Due to parliamentary hearings, there is increase in- unnecessary flattering of political leaders.

•

Due to isolated life, to maintain life, sufficient facilities with adequate finances are needed.

•

All people should be aware of the role and duty of the judiciary and its performance style.

•

Knowledge and skill of judges and judicial officers should be updated through modern legal educationand training.

•

Misuse of discretionary power for fulfillment of their unethical desires.

XI. EXPECTED REFORM
1.

322

Introduce separate codes of conduct for law enforcement officials and update already existing codesof conduct for judges and prosecutors;

143RD INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS

2.

Establishment of effective mechanisms to monitor, supervise and strictly implement laws, rules andcodes of conduct;

3.

Improvement in the selection system of judges, prosecutors and law enforcement officials fromcompetent, highly moral, qualified, trained and experienced persons;

4.

Provide sufficient professional education and training on profession-related matters with proper learning
methods;

5.

Civil society and bar associations can have a beneficial role in bringing transparency to judicial
processes, including judicial discipline;

6.

We need an effective, transparent, open, rigorously fair mechanism for immediate disciplinary proceedings;

7.

Sensitize judges, prosecutors and law enforcemaent officials to the concept of self-discipline as thebest discipline;

8.

Strengthen institutions involved in corruption control, maintaining good conduct and training forjudges, prosecutors and law enforcement officials.

XII. CONCLUSION
Legal provisions alone may not be sufficient to control corruption. Public awareness and collaboration andco-operation with the international community are also important. A strong legal regime against corruption,strong enforcement of general laws; development of a law-abiding culture; the end of impunity; improvementof the socio-economic condition of government officials and also of the general public are pre-requisites forcorruption control.
Like other developing and under-developed countries, Nepal is facing different types of ethical problems in
its criminal justice system. First of all, we have to update the codes of conduct of judges and prosecutors andintroduce separate codes of conduct for law enforcement officials. Weak implementation mechanisms and lackof regular monitoring and evaluating systems are vital problems. If we succeed to correct the present errors,
the criminal justice system will be improved to some extent.

323