Mahesh Singh Saud (Far Western University) has posted Judicial Review of Prosecutorial Power in Nepal on SSRN. Here is the abstract:
Article 158 of the Constitution of Nepal vests the Attorney General with the final authority to decide whether a criminal case shall be instituted on behalf of the Government. The word final has supplied successive officeholders with a constitutional shelter that, on its face, looks beyond the reach of judicial review. The reality is less tidy. The Supreme Court has, across a quarter-century of writ petitions, traced the outer limits of that finality and produced a body of jurisprudence that oscillates between strong deference and assertive intervention. This dissertation maps whether the existing case law can be assembled into a principled standard of review.
The study is doctrinal. It reads the constitutional text alongside the Muluki Criminal Procedure Code, the Government Cases Act, the Government Attorneys Rules, the Code of Conduct for Government Attorneys, and the National Prosecution Policy. It then examines reported decisions of the Supreme Court of Nepal jurisprudence within the comparative experience.
Three findings emerge. First, the framework supplies clear constitutional and statutory anchors for review, principally Articles 133, 20, 21, and 22 read with sections 31, 32, and 116 of the Muluki Criminal Procedure Code. Second, the Court has developed an eight-part doctrine — a core rule of deference; four exceptions covering victim access to justice, transitional-justice obstruction of investigation, and reviewability of pardon and amnesty for jus cogens violations; a procedural scaffolding on evidentiary sufficiency and reverse burdens; the use of structural mandamus; and the delegation doctrine that preserves the professional autonomy of subordinate government attorneys. Third, the architecture is under-theorised rather than under-powered; the recent clean-chit, mass-withdrawal, and attempted legislative-relaxation episodes show that gaps remain in its consolidation and application.
The dissertation concludes that the Article 158 finality is structural, not immunising; that the Court possesses the doctrinal vocabulary to consolidate a coherent standard of review along the lines of the Matalulu test received in comparative Commonwealth practice; and that a calibrated package of constitutional, statutory, administrative, and doctrinal reforms is required to translate that potential into ordinary practice. Recommendations are addressed to the constituent authority, Parliament, the Office of the Attorney General, the Supreme Court, the Nepal Bar, and civil society.
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