Nepal is a democratic nation with a written constitution. It has a vibrant legislature, executive, and judiciary, which are interrelated but independent. In a democracy, the court plays a crucial role to assist in delivering justice. The legislative, the executive, and the judicial branches each have their responsibilities in delivering justice to the people, and their healthy coordination is a must for doing that holistically. After the court passes an order or judgment, its timely implementation is also of crucial importance for the public good.

Somehow, Nepal’s judicial system has from time to time failed to implement court orders effectively the way these should have been. The prolonged non-implementation of a judicial order is problematic, and a threat to justice. The rule of law requires that all judgments and orders be implemented promptly, fully, and effectively. The execution of domestic court decisions as well the execution of international judgment is one of the hallmarks of a democratic society.

In Nepal, the most imminent risk concerning the implementation of court orders and judgment is the lack of manpower and infrastructure (technological and physical). At the same, the lack of political will, illiteracy and awareness of the rights as also other political and social factors are stumbling blocks in their proper implementation.

The political interference into the working of the judiciary and bureaucracy is one of the prominent reasons for the non-implementation of a court order.  The competent authorities hold other authorities responsible for failing in implementation and they excuse themselves from their liability. The stakeholders’ lack of ownership and absence of checks on the judicial officers accentuate the failure of the implementation mechanism. There are loopholes too within the system of bureaucracy, one of them being the transfer of officers within a very short span.

The Supreme Court of Nepal issued 246 verdicts in 2019-2020 to be implemented by the various ministries. However, only 15 percent of them were followed. The implementation rate in the fiscal year 2018-19 was just three percent and it was five percent in the previous fiscal. The government, in most cases, didn’t comply with the court orders. If the government or the secretary-level officers have not complied with the orders of the court, how can one expect a common citizen to comply with the orders?

Judiciary needs strengthening

If the government servant or ministries are not complying with the orders of the court, the same can be treated as misconduct or as unbecoming of the government servant or the government, warranting initiation of appropriate departmental proceedings against them. Even, during the pandemic when the Supreme Court of Nepal issued orders related to Covid-19, the government has largely failed to abide by them.

Earlier, even on issues of national importance, like the issue of citizenship for naturalized citizens and citizens by birth, where the Supreme Court passed an interim order, the ministries concerned and the stakeholders failed to comply. It is virtually impossible to implement court orders successfully without government support. The government should be compelled to follow up court rulings through the filing of contempt of court cases.

The Nepal judiciary lacks the institutional framework that offers informed public engagement with the court judgments. Despite a surge in media coverage of the Supreme Court of Nepal, there is little effort from the apex judiciary to make itself a more publicly oriented institution in terms of increasing access to its work for the public.

It is, therefore, imperative that the highest judiciary formulates a mechanism that provides citizens with reliable access to the results of the adjudication. Based on global best practices, the Supreme Court of Nepal can begin this process by publishing a brief press summary of the judgment it delivers.

For instance, in the UK the Supreme Court has a separate dedicated communication department, which is responsible for spearheading the communication function of the court and serves to promote public understating of the apex judiciary and its judgment. The communication department is also responsible for publishing a summary of the judgment delivered by the court, as part of public education.

Improving implementation of judicial orders

To overcome the issues of failure of implementation, the human resources capacity in the judiciary should be increased, its working system digitalized and the monitoring and inspection mechanism made effective. The government should establish the machinery to implement court orders by designated nodal officers. There must be cross-checks of the reply received by the authority concerning the court orders. The provision of Contempt of Court should be made stricter.  

It is crucial to improve the efficiency of the court procedures and the Committee of Ministers' supervision of the implementation process. Most importantly, the judiciary requires a mechanism for regular reporting of the progress made concerning the targets to be achieved. The discourse around judicial reforms is brimming with recommendations but without enough thought on their implementation.

The Judgment Implementation Directorate of the Supreme Court, which is supposed to play a vital role in the enforcement of court orders and their timely implementation, has failed to play an effective role. The directorate should be made more effective and adequate resources should be arranged.

The responsibility should be fixed on a designated government officer for the implementation of a court order. Necessary and adequate protection should be provided to such officers, or officers from the government may be appointed with court directions to assist the compliance of court orders. However, mere court fiats without fixing responsibilities for compliance can never produce the desired results in such sensitive matters.

To strengthen the judiciary and for effective and expeditious implementation of a court order, there are some areas which should be prioritized - providing justice, effective and efficient management of public resources, harnessing technology’s potential, enhancing access to the judicial process, judiciary’s relationship with other branches of the government, and enhancing public understanding, trust and confidence.

(The writer is a Nepali student of the National Law School of India University, Bangalore, India. The views are personal. He can be contacted at ravinayak@nls.ac.in)