Principles of procedural Law

By Rajeshwori Maharjan

Advocate/Mediator/lecturer

LL.M, MBS, MPA

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Principle of Natural Justice

Principle of natural Justice

• The words ‘natural justice’ are derived from the Roman word ‘Jus Naturale’, which means principles of natural law, justice, equity, and good conscience. These principles did not originate from any divine power, but are the outcome of the necessity of judicial thinking, as well as the necessity to evolve the norms of fair play.
• These are the principles which every disciplinary authority should follow while taking any decision, which may adversely affect the rights of individuals. It is to be seen that rules of natural justice are not codified anywhere; they are procedural in nature and their aim is to ensure delivery of justice to the parties.

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Cont.….

• Adherence to rules of natural justice, as recognized by all civilized States, is of supreme importance, when a quasi-judicial body embarks on determining disputes between the parties or any administrative or disciplinary action is in question.
• Rules of natural justice serve as hedge (barrier) against any blatant (noisy or offensive manner) discrimination against rights of individuals. These rules are intended to prevent such authority from doing injustice.

Cont..

• English legal system doctrine that protects against arbitrary exercise of power by ensuring fair play. Natural justice is based on two fundamental rules:
• (1) Audi alteram partem (Latin for, hear the other side): no accused, or a person directly affected by a decision, shall be condemned unless given full chance to prepare and submit his or her case and rebuttal (counter proof) to the opposing party's arguments;
• (2) Nemo judex in causa sua (Latin for, no man a judge in his own case): no decision is valid if it was influenced by any financial consideration or other interest or bias of the decision maker.

Cont..

• These principles apply to decisions of all governmental agencies and tribunals, and judgments of all courts, which may be declared to be of having no effect (ultra vires) if found in contravention of natural justice.
• The three main requirements of natural justice that must be met in every case are: adequate notice, fair hearing and no bias. Sometimes, all three of these concepts are grouped together as “the right to a fair hearing.”
• The Hearing Rules or Notice Requirement
• • The notice requirement means that the people affected by the decision must be told about the important issues and be given enough information to be able to participate meaningfully in the decision-making process.

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Cont.…

• The Evidence Rule or Fair Hearing or Reasoned Decision
• • Decision has to be based on logical proof or sound evidence. The fair hearing requirement means that the people affected are given a reasonable opportunity to present their point of view and to respond to facts presented by others, and that the decision-maker will genuinely consider what each person has told them when making the decision.
• The Bias Rule or No Bias
• • The no bias requirement means that the person making the decision must act impartially when considering the matter, and must not have any relationships with anyone that could lead someone to reasonably doubt their impartiality.

Cont..

• These rules are intended to prevent such authority from doing injustice. In the past, there were only two rules forming the rules of natural justice; with the course of time, many more subsidiary rules came up to be added to them. These principles are now well settled and can be summarized as under:
• (i) That every person whose civil rights are affected, must have a reasonable notice of the case he has to meet
• (ii) That he must have reasonable opportunity of being heard in his defense
• (iii) That the hearing must be by an impartial tribunal
• (iv) That the authority must act in good faith and not arbitrarily
• (v) The order should be a speaking order

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Purpose of the principle�

• To provide equal opportunity of being heard.
• Concept of Fairness.
• To fulfil the gaps and loopholes of the law.
• To protect the Fundamental Rights.
• Basic features of the Constitution.
• No miscarriage of Justice.

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Principle of Locus Standi (haqdaiya)

Cont.…

• Locus standi is a Latin phrase meaning “place to stand”. It refers to whether or not someone has the right to be heard in court.
• According to Black’s Law Dictionary, locus standi means “a right of appearance in court of justice, or before a legislative body, on a given question.”
• In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.

Cont.…

• What is locus standi?
• right to be heard
• : a right to appear in a court or before any body on a given question : a right to be heard.
• The right or capacity to bring an action or to appear in a court.
• In law, locus standi means the right to bring an action, to be heard in court, or to address the Court on a matter before it. Locus standi is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. It means the person who has the right to knock at the door of the court. A place of standing. The right to be heard in court or other proceedings.

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Cont.…

• Locus standi may conveniently be considered as applying to two groups of applicant: individuals and pressure groups. Where individuals are concerned it will normally be fairly easy for them to demonstrate sufficient interest, so long as they are in some way personally interested in the decision they wish to challenge.
• Where interest or pressure groups are concerned the issue of locus standi has been more complicated. Where a group is acting in relation to a decision which directly affects its own interests, no problem arises as it is acting in the same way as an individual

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Locus Standi under Writ Jurisdiction

• According to supreme court by laws 2049 rule 40 sub rule 1 and 2, the provision made by constitution of Nepal 2072 Article 46, 133 and 144. Every Nepali citizen has locus standi to lodge or suit complaint or plaint. The writ petition for the purpose of cancellation of those laws which are contrary with constitution on the ground of ultra virus.
• Similarly, on the ground of restriction of fundamental rights the person who has victimized has the locus standi to declare void.

Cont.…

• Such restriction or for the demand of the order as other certiorari, mandamus, Habeas Corpus injunction and Quo Warranto and other appropriate orders for the fulfillment of the fundamental rights. Sub rule 3 of rule 40 of supreme court bye-laws has made the provision about locus standi for the person who is in illegal custody, such person office his/ her signature on the repetition. If it is not possible to office the signature by such person his/her relatives can sort the writ petition on behalf of the person who is in under custody. Relatives may be husband, wife, father, mother, friends or other relatives too.

Locus Standi under Civil and Criminal Code

• The cases in which mention on schedule-4 on criminal Procedure code 2074, related person or any person has the locus standi to suit the case (according to sec 43 (1) (c) of criminal Procedure code 2074).
• According to section 10 and section 86 of Civil Procedure code 2074 the person who is suffered himself /herself has locus standi to file the case against the wrong doer’s defendant.
• According to section 91 Civil Procedure code 2074 every general public has locus standi to file the case if the issue is related with public interest but there is a provision that she /he must obtain the permission for such purpose.

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Cont.…�

• Civil Procedure code sec 267 on behalf of minor the guardian may sue the file for protection of his/her right. Similarly, the person who are over aged, sick person, mad and blind. The person who is in foreign and it is uncertain of return back such types of person are entitled for the protection through their guardians on behalf of them.

Principle of jurisdiction (chetradhikar)

• The word jurisdiction is made up of two Latin terms – juris meaning law and dicere meaning to speak. It is the practical authority granted to a legal body by the Constitution or statutory laws to administer justice within a defined filed of responsibility. Colloquially, it is used to refer to the geographical area to which such authority applies, e.g. the Supreme Court has jurisdiction over all of Nepal. However, in a legal sense, jurisdiction refers only to the granted authority, and not to a geographical area.

Cont..

• Jurisdiction refers to the power of a state to affect persons, property, and circumstances within its territory. It may be exercised through legislative, executive, or judicial actions. International law particularly addresses questions of criminal law and essentially leaves civil jurisdiction to national control. According to the territorial principle, states have exclusive authority to deal with criminal issues arising within their territories; this principle has been modified to permit officials from one state to act within another state in certain circumstances.

Cont.…

• Jurisdiction is the power to exercise authority over persons and things within a territory. In a legal sense, it gives a court the power to hear and decide a case or lawsuit. Jurisdiction can also relate to a geographical area in which political authority is recognized.
• Jurisdiction is the right, power, or authority to administer justice by hearing and determining controversies. power; authority; control:

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Nature and Need of Jurisdiction

• Any court retains jurisdiction over matters only to the extent granted to it by the Constitution, and /or legislation of the sovereignty, on behalf of which it functions. The plaintiff must file suit in a court that has sufficient jurisdiction over the case. If the court lacks jurisdiction, the defendant may challenge the suit on that ground, and the suit may be dismissed, or it may be overturned in an ensuing action by one of the parties.
• The rational behind jurisdiction in law is that a court should try and adjudicate only those matters with which it has some connection or expertise or which fall within the geographical, political or pecuniary limits of its authority.

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Types of jurisdictions:

• 1. Original Jurisdiction– the court that gets to hear the case first
• A court's power to hear and decide a case before any appellate review. A trial court must necessarily have original jurisdiction over the types of cases it hears.
• 2. Appellate Jurisdiction– the power for a higher court to review a lower court’s decision. Appellate jurisdiction includes the power to reverse or modify the lower court's decision. Appellate jurisdiction exists for both civil law and criminal law. In an appellate case, the party that appealed the lower court's decision is called the appellate,

Cont.….

• 3. Extra ordinary or Exclusive Jurisdiction – only that court can hear a specific case. Exclusive jurisdiction refers to power of a court to adjudicate a case to the exclusion of all other courts. It is the sole forum for determination of a particular type of case. Exclusive jurisdiction is decided on the basis of the subject matter dealt with by a particular court. E.g. extra ordinary jurisdiction is Supreme court of Nepal.
• 4. Over the subject-matter:
• It means that the court has the authority to hear the type of case or controversy initiated in its court. Certain courts prohibited from trying suits of particular classes by status. Local administration Act 2028 sec 8 (1), Revenue tribunal act 2031 sec. 13 (3), cases related to quasi-judicial are examples.

• 5.Territorial:
• Every court has its own limits, fixed by the State Government, beyond which it cannot exercise it. Thus, the District Judge is in charge of the district and cannot exercise his power beyond that district. The High Court has it over the whole territory of the State. Supreme court has over whole country.
• 6. Pecuniary:

There are a large number of civil courts of different grades having jurisdiction to try suits or hear appeals of different amounts or value. Some of these courts have unlimited pecuniary jurisdiction. Thus, the High Court, the District court and the Supreme court have unlimited pecuniary jurisdiction.

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Principle of limitation (haadmyaad)