Principle of Natural Justice in Nepal

Introduction to the Principles of Natural Justice

The Principle of Natural Justice is the collection of legal principles rooted in equality that ensure fairness in both administrative and judicial proceedings. They require legal and government professionals to act without bias and provide parties with an opportunity to be heard. In the context of Nepal, Natural Justice has been introduced theoretically in the constitution as well as in the substantive and procedural codes of our country.

Definition of Natural Justice

According to Aristotle, Natural Justice signifies treating equals in an equal manner and treating unequals in an unequal manner. The principle of Natural Justice involves giving everyone what they deserve based on meritocracy. John Jocke has argued that Natural Justice revolves around the protection of life, liberty, property, and other rights of the individual. Lon Fuller posits that Natural Justice encompasses the principles of procedural fairness, ensuring that decisions are made openly, without bias, and with the consideration of all relevant information.

Concepts of Natural Justice

The Principles of Natural Justice are guided by procedural fairness, which demands fairness and impartiality in any decision and action of the government. To ensure this, the principles that “no one should be a judge in their own case” and “everyone shall be heard” are the two ancient principles most applied. However, it also comes to mean transparency, consistency, and the protection of individual rights.

Importance of Natural Justice

Natural Justice is instrumental in safeguarding individual fundamental rights and interests. It is essential to uphold the rule of law and prevent the tyrannical abuse of power. Moreover, the principle of Natural Justice holds individuals accountable for their actions in an impartial way by promoting accountability and aiming to preserve democratic practices. It also guarantees procedural fairness through the legal and administrative system.

Theory of Bias

The theory of bias is one of the two cornerstone fundamentals of Natural Justice rooted in the maxim: “No one shall be the judge in their own case.” No judge can maintain partiality and bias during a court hearing but should set aside their prejudices, biases, and limitations for a lawful and consistent decision. If any cases related to relatives, position, etc., which can potentially induce bias upon the judge arise, the judge isn’t competent for such a case. Hence, a judge is expected to be impartial and exercise their reason to give objective decisions for the case.

1. Personal prejudices
2. Economic prejudices
3. Material prejudices
4. Theoretical prejudices
5. Mental prejudices

In the circumstances mentioned above, a judge is considered partial and unfit for making an equitable decision.

Theory of Hearing

The theory of hearing is a fundamental aspect of the principles of Natural Justice. It ensures that individuals are given a fair and impartial opportunity to present their cases before a decision is reached. It ensures due process and procedural fairness within legal proceedings. It carries the principle that everyone involved in the case has the right to present one’s case, including relevant evidence and arguments. It also aims to prevent any personal bias and protect against any form of arbitrariness from the government or the judicial system.

Elements of Impartial Hearing

1. Presence of oral or written presentation by a professional
2. Presence of the decision-maker during the case
3. Presentation of all forms of evidence
4. Provision for witness examination
5. The accused must be allowed to present a counter-claim
6. The judge must accept all forms of evidence as provided by both sides.

Laws Concerning Natural Justice in Nepal

Constitution of Nepal

Article 17 of the Constitution guarantees the right to external freedom, including the right to assemble and the freedom of opinion and expression. Article 18, addressing the right to equality, ensures that all citizens are equal before the law and that no person shall be denied equal protection under the law. Article 20 further secures natural justice through rights related to justice, which provide the right to legal representation, 24-hour access to the court of law, prevention of illegal detention, protection against double jeopardy, and the right against self-incrimination. Article 134, detailing the power to transfer cases, stipulates that when judicial impartiality can be questioned, a case can be transferred from one High Court to another. Article 145 also establishes that if a situation arises where judicial impartiality can be questioned in a District Court, the High Court can order the transfer of such cases from one District Court to another.

National Civil/Criminal Procedural Code 2074

The National Civil/Criminal Procedural Code 2074 states that a judge cannot preside over cases where a relative is a party. The definition of close relatives is broad, ensuring the absence of any form of discrimination. The code also prohibits individuals from deciding cases in which they were once a witness or represented one of the parties.

Judicial Administration Act 2073

The Judicial Administration Act provides that if judicial proceedings have been inconsistent and irregular, one can seek recourse in higher courts to reach a final decision.

Evidence Act

The examination of witnesses, expert testimony, and witness testimonies must also ensure procedural fairness and be conducted impartially and fairly.

Exceptions to the Principles of Natural Justice

The principles of natural justice are not recognized in specific circumstances that could hinder national or public interest. Also, since natural justice isn’t a precise guideline, it is challenging to exclude exceptions to natural justice:

1. Emergency situations
2. Confidential information
3. National security and public interest
4. Disciplinary actions
5. Contempt of court
6. Internal administrative matters

Conclusion

The principles of natural justice have been substantially acknowledged and upheld in Nepal. They have been constitutionally recognized within the Constitution of Nepal, guaranteeing fundamental rights as well as judicial and procedural fairness. The right to legal representation, protection against bias, and the right to a fair hearing are also safeguarded in Nepal. Despite some exceptions, natural justice has been fundamentally established in the judicial proceedings of Nepal.