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.