In quasi-judicial or judicial proceedings ,while making decisions,the concerned individuals should be informed and should also be allowed oppurtunity to present their argument and to defend it.
Legislative action includes formation,implementation and administration of by-laws or delegated legislation by administrative agencies .For eg. Section 2(a),6(a) and 19 of the National Diary Development Board Act 2048
They cannot make rules and regulations going against the spirit of their enabling Act.
Section 20:Delegation of Authority:Government of Nepal may delegate the authority ,either conferred upon it or upon the Department of Industry or the Department of Cottage and Rural Industry under this Act or under the Rules made under this Act,to any department ,office or officer.
1 NEPAL LAW CAMPUS :
Nepal Law Campus (NLC), a leading institution of the country, is the oldest college imparting legal education in Nepal since 1954. NLC is located at the heart of the Capital.Nepal Law Campus has a five year Bachelor of Arts Bachelor of Laws (B.A.LL.B) Programme, three year Bachelor of Laws (LL.B.) Programme and three year Master of Laws (LL.M.) programme, which was introduced by the Faculty in 2012.
2 NATIONAL LAW COLLEGE :
National Law College (NaLC) is established with a mission to uplift legal education of our country. NaLC is affiliated to Tribhuvan University of Nepal. NaLC has two graduate level programs, Bachelor of Arts combined with Bachelor of Laws (B.A. LL.B) and Master of Laws (LL.M).
3 KATHMANDU SCHOOL OF LAW :
Kathmandu School of Law, established in 2000 AD as a community-based, non-profit academic institution is an only institution to impart pragmatic and community responsive legal education in the country. KSL offers five-year . BA.LLB course after completing +2 or intermediate course in any stream, followed by LL.M, one year interdisciplinary M.A. Programs in Human Rights and Conflict and International Humanitarian Law.
4 CHAKRABARTI HABI ACADEMY COLLEGE OF LAW :
Chakrabarti Habi Education Academy, College of Law is a constituent college of the Chakrabarti Habi Education Academy. The College of Law was established in 2010 with the affiliation from the Purbanchal University. Presently, Chakrabarti Law offers five years BA.LLB and two years LL.M. degree.
5 PRITHIVI NARAYAN CAMPUS :
Prithvi Narayan Campus was established in 2017 B.S. and has been offering 18 master degree programs and bachelor programs as well. It is one of the largest campus of Nepal situated in western region. Prithvi Narayan Multiple Campus is a government campus which is affiliated to Tribhuvan University.
6 MAHENDRA MULTIPLE CAMPUS DHARAN :
Mahendra Multiple Campus (MMC), Dharan is a constituent campus of Tribhuvan University located in Dharan-10, Sunsari, Koshi, Nepal.MMC has been offering higher education in Humanities, Management, Law and Education since 2012 BS.
7 MAHENDRA MUTILPLE CAMPUS NEPALGUNJ :
Mahendra Multiple campus Nepalgunj established as Narayan Inter College in 2014 is one of the oldest and bigest educational institutions of the mid western and far western development region of Nepal. At present, the campus is offering bachelor and master level programs in Humanities, Management and Education; bachelor degrees in Law and Science.
8 BUTWAL MULTIPLE CAMPUS :
Butwal Multiple Campus is one of the biggest campus of Lumbini Zone. It offers different Bachelors and Masters program with affiliation from Tribhuvan University. The college offers several courses in the disciplines of Arts, Science, Commerce and Law etc.
9 BRIGHT VISION COLLEGE (BVC) BIRATNAGAR :
Nepal Law Campus (NLC), a leading institution of the country, is the oldest college imparting legal education in Nepal since 1954. NLC is located at the heart of the Capital.Nepal Law Campus has a five year Bachelor of Arts Bachelor of Laws (B.A.LL.B) Programme,three year Bachelor of Laws (LL.B.) Programme and three year Master of Laws (LL.M.) programme, which was introduced by the Faculty in 2012.
NLC publishes an academic and research based journal as an annual publication namely Nepal Law Review (NLR). Articles on legal and constitutional issues, legal developments, commentaries, analysis, book reviews, case comment and comprehensive overview in the field of domestic and international law can be submitted for publication.
NLC has its own well furnished and well equipped library with text books, reference books, Law Journals, Gazettes, Nepal Law Reports (NLR), and e-library. NLC has well equipped computer lab with internet facility.NLC has its own dispensary for the primary health services. The primary health service coulld be provided to students if required.Indoor and outdoor games would be offered to the students.
NLC has well furnished and well equipped classrooms including multimedia projector. It has also a separate Moot Court room and a seminar hall.
CASE : CRIMINAL CASE
COURT : SUPREME COURT OF NEPAL
The petitioner Gurung claimed that the Court Marshal general took action against him although he was a civilian. The Case study : Imansingh Gurung VS HMGN
He was sentenced to eight years imprisonment under Section 45(b), in an allegation of committing crime under Section 57 of the Military Act. He had urged the respondent for the revision of the decision; however, no notice of any development about the same had been supplied to the petitioner. The petitioner had been punished for two years of imprisonment and fined Rs. 65,000 by the Central Regional Court on a charge of illegal foreign exchange. The Court Marshal again punished him on the same ground.
This had violated Articles 11(4) and 14(2) of the then Constitution as well as Article 14(2) of the Constitution of 1990. Civilians may not be punished under the Military Act. The petitioner requested that the decision be declared void and that he be released from illegal detention issuing an order of habeas corpus.
The respondents stated that the punishments awarded to the petitioner by the ordinary court and the Court Marshal were separate and not the same case. The punishment by the special court was related to illegal possession of foreign currency while the punishment by the Court Marshal was related to abetting a military officer to commit an illegal act. The Military Act is protected constitutionally under Article 131 and Section 4 of the Law Interpretation Act 1953. Therefore, the petition was requested to be quashed.
Full bench Held
Article 23 of the Constitution guarantees constitutional remedy for substantive as well as fundamental rights. Article 88(2) of the Constitution may be applied to declare a law null and void if only such law is inconsistent with the present Constitution, not the former Constitution.
The jurisdiction of the court may not be exercised retrospectively to declare void a decision taken under the situation where the former Constitution was effective. The question on the constitutionality of the jurisdiction of the Court Marshal would have been raised then under Article 71 of the former Constitution. The question is raised only after three years of the existence of the law; therefore, it would not be practical declaring such law void abinitio<, unless deemed extremely necessary by the nature of the subject matter.
If citizens are treated unequally by any act of state agency or by law made by legislature that would be unconstitutional in accordance with Article 11(1). Laws formulated to fulfil requirements of one group or community may not resolve the problems of other groups or communities.
If there should exist a reasonable relationship between such laws and the intended objective, it may not be regarded against the right to equality. Therefore, the provision of Section 1(3)(d) may not be consented on the ground of the systems of the other countries and court judgments. If the provision is endorsed, regarded as reasonable and if jurisdiction is given to the Court Marshal to adjudicate cases involving a civilian only on the ground of the involvement of military personnel in the crime, this may be social intercourse of the military. Therefore, it is discriminatory and unjust to apply the debated section of the Military Act to the civilian petitioner.
If any civilian citizen is treated differently to the other civilians keeping him in a military category and depriving him of the opportunity of justice through an ordinary court, and if there does not seem reason and ground, such act would be against the Article 11(1) of the Constitution. Hence, clause Section (d) of clause 1(3) of the Military Act is deemed inconsistent with Article 11(1) of the Constitution and thereby declared ipso facto null and void.
In the context of issuing a habeas corpus order, it is obvious that the detaining agency, whether ordinary court or military court, must maintain the Constitution and legal provisions. The restriction by the Constitution to interfere in the proceedings of the Court Marshal does not mean that it may act whichever way it likes. If the Court Marshal detains against the Constitution and the law and if the path of complaining is closed, the detained may seek alternatives and the court may release the prisoner by declaring the detention unlawful.
As far as the actions and punishment of the petitioner are concerned, the facts and evidence of the case show that the punishment awarded to the petitioner in accordance with Section 45(b) and 7 of the Military Act is based on a charge of illegal possession of foreign exchange which is a crime of civil nature like customs, smuggling, corruption etc
It may not be said that such acts would fall under military crime merely on the ground that proceeded under military law. The military offence is related to the operation of a military organisation and discipline; so the intention of the proviso of the Article 88(2) is not to restrict interference only on the ground of involvement of military personnel in any crime.
Therefore, the court can review judicially the punishment awarded to a civilian in a charge of civilian nature by the General Court Marshal and it can declare void such unconstitutional and unlawful decision. The charge to the petitioner seemed to be abetting to a military personnel. Hence, the punishment by the Court Marshal is revoked and the petitioner be released from the detention by an order of habeas corpus.
COURT : SUPREME COURT OF NEPAL
CASE : CIVIL CASE
The appellant was accused of being involved in a robbery case and there was a statement allegedly made by the accused at a police office confessing to the accusation. The initial appeal court had convicted the accused on the ground of this confession and the appellant had appealed to Supreme Court claiming that the confession was drawn against his will and could not constitute sufficient evidence for conviction.
In the decision of the subordinate courts it seemed that the appellant was charged with the accusation on the basis of the information of an approver. In any case it would not be just and reasonable to take the confession of such a person against him unless supported by other independent and reliable evidence. For judicial conscience, the confession taken from the accused in custody is not enough for the justification or verification of the information received from the approver.
The statement made by an accused in custody may not be acceptable as independent and trustworthy whatever the circumstances may be. Even if it was not proven that the police had directly subjected the accused to any threat or coercion, the custodial confession may not be taken as the evidence enough to convict an accused since such confession might be drawn from influences in custody. Therefore, the judgment of the subordinate courts is not upheld and the appellant is acquitted.
RIGHT TO INFORMATION
COURT : SUPREME COURT OF NEPAL
CASE: CIVIL CASE
According to the information disseminated by the governmental and non-governmental media, Arun Hydro Project, which was about to be launched, would create an economic misuse such as percentage commissions due to the involvement of World Bank and other international contractors and also a long-term impact on environmental protection and social balance. It was alleged that the investment of the project might not be sustained by the country. As vigilant citizens the petitioners requested information on the project from the respondents. However, the respondents denied this and thus infringed the petitioners’ fundamental right to information as granted by Article 16 of the Constitution. There were numerous suspicions on the need, rationale, usefulness and sustainability of the project due to doubtful activities and contention of the respondents. The loan drawn from the foreigners would have to be reimbursed, directly or indirectly, through the taxes paid by the citizens of Nepal including the petitioners. In the Memorandum of Understanding the terms and conditions of the investors were not found stated even though the matter was a public concern and the right to such information is also granted by the International Covenant on Civil and Political Rights which applies in Nepal equally to domestic laws. There were several precedents regarding public concerns. Therefore, the petitioners requested an order of certiorari, thereby directing the respondents to supply all the information regarding the project.
The respondents asserted that several seminars and meetings had been organised to clarify the technical, environmental and economic aspects of the project. At its office a library and information section is operated to supply information to the people as required. Therefore, citizens including petitioners are not deprived of the right to information. The petitioners had no locus standi either. A study of the project had been carried out for a long time and the proposed project is appropriate in every aspect. The technical aspect is perfect and different measures are set to control environmental impacts. The benefits to the local people after completion of the project, training related to its construction and operation, necessary facilities and securities and settlements for people possibly displaced from the project site had already been planned. The provision of Article 16 is not a privilege of the petitioner to receive copy of all statistics and details but only entitlement to general information. The petition mentioned about the Memorandum of Understanding, which shows that the petitioners had access to any necessary information. Accepting inevitability of the need of hydro-electricity for the development of the nation, the project is to be completed under Articles 25(2) and 26(3) of the Constitution, which in fact restrict the exercise of jurisdiction for judicial remedy. Thus, it was requested to nullify the petition.
The respondents had requested an immediate hearing of the case, especially taking into consideration the possible negative effects on investments and operations from the side of donors, which could cause a national loss.
Any dispute, if it affects negatively the interest of the general public, is an issue of public concern. General public concern includes the issues related to residence, employment, security water resources development, social justice etc. Arun-3 project would have a long-term impact on all citizens including the petitioners. The debated issue is about the development of electricity by national and international resources, and therefore is a subject of public interest and concern.
Article 88(2) may not be attracted merely because of the inclusion of a public issue but the subject should bear the nature that fits enunciation by the court.
In the present case, it would not be constitutional for the court to put off the case as the court cannot enforce directive principles of state policies. Since Article 16 provides for each citizen to demand and receive information about a matter of public concern, the petitioners deserve a locus standi to file the petition with the court, as the debated Arun-3 Project is a matter of public concern and importance.
A right is nothing without a remedy. Although Article 16 of the Constitution guarantees the right to information, there is no specific law providing for the manner and matter to provide the information. The spirit of Article 16 seems to be one of managing people’s right to information in a democratic manner.
The petitioners had not related the said dispute with a particular question of law or constitution. As the matter claimed therein is not one of judicial enunciation but rather one related to economics and politics, Article 88(2) cannot be attracted therefore.
When a right is established and if procedure to materialise the right is still lacking, the court has to fill the gap. The demanded documents seemed to be of a huge quantity and it would simply be impossible for the respondents to supply the petitioners with copies of all the documents. If the court would impose such a burden this would go beyond judicial limitations and would be a rigid manifestation of justice.
Therefore, in lack of directives by the law, eight points of procedure were laid down by the decision to supply the copies i.e. information. A writ of mandamus was issued for the purpose of supplying the information on the basis of the above-mentioned eight-point procedures and prevailing laws of the land.
The court has also drawn the attention of the government to formulate the official secrets Act. It has also ordered that the eight-point procedures would come into force until and unless necessary rules and regulations were made.
COURT : SUPREME COURT OF NEPAL
CASE : CRIMINAL CASE
The petitioner was charged with an offence under Section 4(a) of the Human Trafficking Control Act. The prosecution was carried out under the provision of Section 6 and 7(2) of the Act regarding the endorsement of statements made by the approver at the police. According to the above mentioned provision, if the defendant did not deny such a statement, the court could take it as endorsed and as conclusive proof.
According to Article 11(5) of the Constitution 2019 and Article 14(2) of the Constitution 2047, presumption of innocence is a fundamental right. In the line of this provision, a plaintiff is liable to prove that the defendant is not innocent. The principles of law, as accepted by Nepal, state that in criminal justice the burden of proof does not lie with the defendant. The provision of Section 7 of the Act is inconsistent with Article 11(5) of the former Constitution and would, ipso facto, be void after one year of commencement of the new Constitution.
As with crimes of a serious nature the burden of proof shifts to the accused, the option to be released on bail or due dates during the trial of cases are no longer available. Therefore, the petitioner had asked for a necessary order including the order mandamus.
The defendants’ side contended that the Human Trafficking Control Act was a law to maintain order in society and to prohibit the trade of human beings. The privileges of formulating such a law under the provisions of Article 17 of the former Constitution and Article 11(a) of the present Constitution were fundamental principles of law. In a criminal case the accused may not be deemed guilty only on the ground of his or her statement, but rather it should be supported by other corroborating evidence. Since any violation of the petitioner’s fundamental right had not been established, the petition would merit to be annulled.
The case was referred to a special bench from the division bench, as a serious constitutional issue was to be dealt with in the case.
According to the provisions of Article 11(5) of the former Constitution and 14(3) of the present Constitution a person is not bound to speak against him or herself against his or her will. One should not be presumed guilty simply on the ground that one remained silent. However, his right to silence does not restrict to convict the accused if established or proven guilty by other evidence. Therefore, if someone voluntarily makes a statement, the same may be taken as evidence in favour of or against the person.
The issue of Section 7 of the Human Trafficking Control Act that relates to the burden of proof is a matter of legislative policy. The provision formulated in a law by legislature may not be termed as void unless save with the provision stated in the Constitution. The burden of proof is laid to the plaintiff or defendant depending upon the subject matter. If a special act requires someone to lay the burden of proof on a certain party on the basis of certain circumstances, it may not be labelled as going against the Constitution.
The preamble of the Act says that the law was brought forth to protect the interest of the ordinary people by controlling the trading in human beings. Imposing restriction on such an act itself is constitutional. Therefore, the said clause 7 does not directly control the defendant’s right to silence even if the burden of proof is laid on the defendant.
The court never compels someone to make any statement against him or herself and no provisions have been made to restrict the fundamental rights of the defendants. Since the court looks into other direct and circumstantial evidence in accordance with law, laying the burden of proof on the defendant does not mean that the court overlooks other evidence. In a different context special laws have been made laying the burden of proof on the defendants. Therefore, unless the law is seen to have been formulated explicitly against the provisions of the constitution, the court may not doubt the constitutionality of such a law. It is not found that Section 7 of the said law clearly contradicts with any provision of the Constitution, therefore, the petition is quashed.