KATHMANDU: There is a popular legal maxim: justice delayed is justice denied. The pace at which Nepali judicial system works only reinforces that maxim. Public has a perception that justice is often delayed in Nepal.
One reason for this is that defence lawyers always resort to tactics to prolong the case. The litigants who visit courts feel that getting justice on time is nearly impossible. Many sufferers feel that judgements are often issued by the court after their significance is diluted.
For example, nearly one-and-a-half years ago the apex court had scrapped a review petition, stating that there was no need to act on the demands of the petitioner to reinstate the House of Representatives. Ultimately the then king Gyanendra reinstated the House and abdicated the throne.
There are hundreds of similar examples. Recently governor of Nepal Rastra Bank got a clean chit in a graft case almost one year after the appointment of Dipendra Bahadur Chhetri at the same post and the government is now in a dilemma whether or not to reinstate the former and the fate of the incumbent hangs in balance. In the same corruption case, former minister Chiranjivi Wagle has been awaiting the apex court verdict for the last couple of years, though the concerned Act states that the apex court should give its decision in such cases within three months of their registration.
To check delay in issuing verdicts, the Supreme Court recently adopted a law against those involved in lingering the cases. The apex court has passed a law to vacate the stay order if a client indulges in prolonging tactics after receiving a stay order. S/He may also be directed to compensate the opponent. “Clients have a tendency to resort to delaying tactics even after getting a stay order,” Hemanta Rawal, assistant spokesperson, SC, claimed. “The new provision is likely to curb such practices,” he added. The Supreme Court adopted this law to check such practices. A full court meeting of apex court justices held on July 14 amended the Supreme Court, Appellate Court and District Court Rule.
The new provision adopted in the amendment will come into effect within a few weeks after the publication of the amended rule in the Nepal Gazette. Another rule adopted by the apex court to check the delaying tactics is to restrict lawyers’ authority to postpone hearing to not more than two twice — on the basis of illness or any other situation beyond his or her control. “If anyone tries to postpone the hearing with an ill-intention to harass the opponents, the stay order s/he acquired from the courts shall be vacated,” Hemanta Rawal added.
In addition, if anyone manages to get a stay order by producing wrong facts, s/he will have to compensate the suffering party. The apex court has made a provision of panel hearing in order to provide prompt justice. This will help the apex court in providing justice through a panel of judges expert in concerned subjects. The random case assignment system will end and the cases will be assigned to judges based on their expertise. Advocate Tara Kumar Shrestha welcomed the move of the Supreme Court. “This may help in prompt delivery of justice but may create problems when lawyers face genuine problems. This looks theoretically acceptable but may prove problematic in practice,” Shrestha added.
A member of Supreme Court Bar Association, advocate Prem Singh Dhami, however, questioned the bid of the SC to tackle the issue of delayed justice. “The amendment was made holding only the lawyers accountable but judges themselves have been postponing the hearings. If they continue to do so, what’s the remedy?” Dhami wondered.
In a nutshell
• Seeking a stay order may boomerang on the client if wrong facts are presented and the suffering party will have to be compensated
• Resorting to delaying tactics after the issuance of stay order will result in its vacation
• Lawyers cannot seek postponement of hearing more than twice
• Lawyers have to submit doctor certificate and reasonable grounds for the postponement of hearings
(Tenth Amendment) Rule
• Rule 9: CJ shall set up panels for hearing of cases
• Rule 15: Temporary appointment in non-gazetted class till PSC recommendation
• Rule 41: Stay order shall be issued if the beneficiary is ready to provide compensation to opponent in case wrong facts are presented. Court can vacate the stay order if it feels like doing so
• Rule 65: The hearing of cases on priority list shall not be postponed
(Ninth Amendment) Rule
• Rule 3: If commercial bench judges are not present, other judges shall be assigned for the hearing
• District Court (Seventh Amendment) Rule
• Rule 7: Registrar shall operate the financial administration
A version of this article appears in print on July 22, 2009 of The Himalayan Times.
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