Cyber Law: Its Implementation in Nepal

Research Proposal on A COMPARATIVE PROPOSAL FOR TRIAL BY JURY IN NEPALI LEGAL SYSTEM Submitted to BA/LLB Programme Nepal fairness Campus skill of right Tribhuvan University Submitted by SauravNath Pant BA/LLB, 3rd Year place No. 13 Section A March 3, 2013 1. 1 innovation I hold al manners been a firm beli ever in handstal test by gore. Somehow it is ingrained in me. As it is in close to Englishmen. It is a lesson which has been handed d witness from hotshot generation to some other during the last 800 years.The rill by board a tradition held unspoilt to the British is a judicial proceeding in which a control board either makes a decision or, makes findings of fact which ar then utilise by a calculate. It usually comprises of 12 men. The jury strategy is a system developed in the plebeian Law, taken as its organic cleave which globedates that No free valet de chambre shall be captured and or, impris championd or, disseised of his freehold and or, exiled, or in any right smart destroyed, nor impart we proceed against him by deplumate or proceed against him by arms, moreover by the uprightness-abiding perspicaciousness of his peers. The control panel schema scum bag be traced back upto the Greek and the roman era.The Greeks were succeeded by the Romans while the Roman Empire collapsed. tho it is largely the British placement that has embodied the control board governance and established it as a tradition of the Common Law carcass. index William the Conqueror established the Norman Dynasty in Eng dry land by his conquest of England in 1066. The jury System was introduced by a Norman superpower in England. One day the King was watching the justice lurch process, and noniced that a single judge could non al counsels impart fair justice. thusly he spy that twelve laymen could transgress better justice than a judge.As a conclusion he asked his advisors to compose a jury of 12 tidy sum along with a judge to settl e the disputes filed at the court of law. The Magna Carta of 1215 further secured trial by jury stating that, * For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a stern offence correspondingly, but not so heavily as to loot him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a farmer the implements of his husbandry, if they fall upon the mercy of a royal court.None of these fines shall be imposed save by the assessment on oath of reputable men of the neighbourhood. * Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence. * To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful nous of his equals, we pass on at once restore these. * If we have deprived or dispossessed any Welshmen of lands, liberties, or anything else in England or in Wales, without the lawful sagaciousness of their equals, these are at once to be returned to them.A dispute on this point shall be determined in the Marches by the judgement of equals. English law shall apply to holdings of land in England, Welsh law to those in Wales, and the law of the Marches to those in the Marches. The Welsh shall treat us and ours in the same way. It has already been stated that the ex meanation of jury System covers over a period of 800 years. During that period the Jury System developed, and changed with date but never discarded. Some instances of its course of festering is given at a lower place 1. The Principle of Unanimous This principle was established in 1367 and it lasted for 600 years until 1967.In 1967, the fantan altered it. The verdict was held valid if the majority was ten to two. 2. The jury were unplowed without food, heat or light once they retired to consider their verdict. The magazine bless sourula was, Without meat, drink, fire or potdle 3. Once only aver maturate men (with some qualifications) were allowed to sit as juror. Now all people, men or , women, deaf or , blind, honest or, dishonest could sit as jurymen. All who are 18 years of age and are listed to the voters list are qualified as jury men. Yes, in the past 800 years or, so the Jury System has changed a lot.So practically so that master Denning himself considers 19th century to be the golden age of Trial by Jury. yet it is not these changes that have led skipper Blackstone in his lectures in 1758 to say Trial by jury ever has been, and I trust ever go away be, looked upon as the glory of the English law. It is the most transc terminalent privilege which any subject tidy sum enjoy, or wish for, that he butt jointnot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals It is the cases dogged by the Jury and the way in which one man whitethorn be convicted.A person whitethorn only be convicted if his equals (or, i n the liberal mavin- the society) finds him to be guilty. Instances have been recorded where the Jury has upheld justice passed for the development of serviceman rights, and even acted as an important check against the state power. The cases pull up stakes be discussed later but a special mention to the case of the Kings Brewer and the Seven Bishops is to be made here. The verdict of the Jury defied the powers of the king and sent the whole of the nation into partying.Also the system brings forth the sense of High Drama, into the courtroom. Nevertheless, the advantages offered much(prenominal) as plentiful ordinary folks their most useful lessons in citizenship, giving the people an active and decisive part in the administration of justice and in establishment of habit of respectfulness in law are the very reason (along with fact of be once ruled by England or, having judge Common Law) that has led a number of countries like America, Australia, Austria, Belgium, Canada, G reece and so on to support the Jury System.Our honourable motherland, Nepal however has not accepted the Jury System everthough following a moreover mined form or, in its own way a unique form of legal system which is obtainn to be highly predominate by the Common Law System. 1. 2 Statement of Problem It is a matter of fact that we find in Nepal the large dominance of the Common Law System. Moreover we can say that Nepal has accepted the Common Law System at large.The quality feature of the Common Law System such as precedent, the image of the judge, the role of the lawyers, the power in the adjudicate to make the law and too the power in the judge to construe and enlarge the scope of the law and so on are put together in the Neaplese law. They do show the high influence of the Common Law system into the Nepali statutory System. But one major characteristic trait still remains to be embodied into the Nepali Legal Systems, i. e, the Jury System. The notion to forward the n eed of Jury system in Nepal can as well be done through a tiny change in the status.In many countries of continental Europe and Japan the spirit that a single judge is not a judge has compete significant role in strengthening the quality of justice, therefore they usually compose the bench of three judges even at the trial level. At the appellate level hearing by more than half(prenominal) a dozen judges is a common legal practice. This creation of plural adjudication has not been yet accepted in Nepal, exception to the arbitrary Court and Appellate Court where normally two judges set the case.At the trial level, till today, the case is cosmos decided by one judge, which leads to cause imperfect justice and therefore some sort of dis-satisfaction in the people as seen in Nepal. However, here we necessarily do not need to imply that the Jury system as seen in England is infallible but we may say more definitely and positively, for example Nipponese did not follow the J ury System but accepted the sentiment of securing assistance from the assistant judges and nurture groups. Instead of Jury, the Chinese accepted the concept of People Assessors and discriminative Committees making them responsible to find the rightfulness in the case.Even the Indian courts, on some ocassions, have begun to compose such study groups and accept the rule of public exponentiation particularly in the LokAdalat. Public participation is an important aspect for the growth in the Judicial culture. Here the Jury will pay a great role to develop public confidence toward justice system. Our system in delivery in justice is incomplete and the incomplete thing could not give complete achievement. Hence, is it not reasonable for Nepal to accept the Jury System?Similarly, the explore opus in like manner looks to find the answer to whether creation public participation can cause to solve the dissatisfaction seen towards the Judicial system. In Nepal, we likewise have the pr oblem of taking any concept as an end and not as a means towards an end. The search paper will also look to give resultant role towards how we can establish the Jury System as a means towards an end and thus find solution towards some of the existing problems in the Judiciary. It looks to give suggestion towards the form in which we can apply the Jury System in Nepal. 1. Hypothesis explanation is the past wisdom and a storehouse of knowledge. It helps to rede the past, the coming up to the present time and also predict for the future. Nepal is a lucky terra firma as historicly she is very rich. The history of Nepal seems to date back way before the time of Lord Krishna and Mahabharata. We also find the mentioning of Nepal in the Vedas. Nepal may not have the concept as known to the world by the name of Jury System. But Nepal certainly has the fundamental notion of the Jury System known to her and to the history as the punchayet.The adjudication of dispute by the people themsel ves was done in the Kirat and Lichhavi period through Panchalika and Grampanchayat. This concept fundamental to our land had been lost and resurrected by King Mahendra in the 2019 B. S. constitution. So, it is not necessary as a whole to name the concept next to be introduced in the Judicial System as the Jury System but we can always give the name retaining the portion of history and culture and giving it to some extent the Nepali touch. The concept can be ours and we can always borrow the wisdom of Great Britain for practical usage.Hence, basically the unify up of the system into the Judiciary will give rise to our own set of the Jury System. The 2019 B. S. governance had established the various level of Panchayat formally. It was taken moreover as an Administrative body than a juridic one. It had some juridic function. It will only be doing justice to the history if we are to summon once again the local people as Panchayat to participate in the justice administration as a alte ration of the Jury System. Similarly, while looking towards the notion through the stinting standpoint, we are to look at the history of the system in Britain.Its development will certainly give solution to the problem. If we are not to accept the whole developed form and look upon the form in which we can accept, then and only then can we establish the Jury System to serve as a means towards an end. The system should conciliate the country and be accepted by taking into consideration the conditions prevalent in Nepal. The surgical process of the system should also be somewhat which will suit our country. For example we should be able to decide what to what ratio verdict will convict the accused. Similarly, the qualification should also be made taking into consideration of the people.For example at first instance, all should be qualified but only for the small types of crime. For complex cases of fraud, expert panel should be created or, at least people who can understand should be selected. The internal functioning should be designed to meet the need. The key issue in the research will be amalgamating tradition into the jury, establishing a more need worthy Jury System taking into consideration the country as a whole and also to find solution to the economic problem that may arise from accepting the Jury System.However, initially the research paper will establish the Jury System as a positive way forward. 1. 4 General and Specific Objective The objective in ecumenic of this study is to establish the need of jury system in the judicial organ of the State and establish it as a positive way forward for the country. The research paper will look to show how this time tested formula will help the people and the State as a whole. At first instance the Jury System looks to work as a check against the State power. But side-by-side it also will be educating the people.The study has the following three specific objectives 1. To study and preach ways by which the j ury can be made economically viable. 2. To suggest the way in which the Panchayat concept and the jury system be amalgamated in order to form an Anglo-Nepal hybrid Jury System. 3. The research paper will also look to furnish the plan of action such as the majority compulsory for conviction, the expertise needed to sit as a juror in complex cases and/or, semipolitical cases, the way in which prejudices can be removed and so on. 1. 5 Rationale of StudyThe main rationale of the study is the need to analyse the Jury system its pros and cons, its obstacle for acceptance in Nepal and possible solutions and the format in which it is to be applied. Similarly, the research paper also looks to analyse how the acceptance will affect the Judiciary, common people and the nation as a whole. 1. 6 Limitations of Study This study is limited to comparative analysis of the pros and cons of the jury system. This study is also limited in the historical analysis of our own variation of the jury system along with economic problem and the form in which the clay is to be moulded i. . , the working analysis of the system. 1. 7 Research methodological analysis This study is based on doctrinal method of scientific research. Hence the research methods of field survey and primary empirical data host are not applied. Rather it is textually driven. 1. 8 Organisation of Study For the aspire of conducting the study on the topic, the Seminar Paper will be divided into v chapters * Chapter 1 deals with the introduction of the jury system and the views pertaining to the system. Chapter 2 deals with explaining the necessity of jury system in Nepal * Chapter 3 deals with Nepals own experience in history with a Nepali variation of the system * Chapter 4 deals with problems that may arise if we are to accept the system * Finally, the last Chapter 5 is the think chapter which looks to furnish suggestions for the way in which the jury system can be adopted and the problems be countered. 1. 9 Lit erature Review For the utilization of the research, I have gone through the following research works, books, constitutions and websites. 1.A research paper by Krishna Prasad Sharma Nepal on Restructuring of the Judiciary in Nepal with special reference to glide path to Justice. Here the rootage has suggested for restructuring of the judiciary in Nepal, which my work also looks to do. He had not touched upon the issue of jury and my paper looks to do so. 2. Lord Denning, What Next in the Law, capital of the United Kingdom Butterworth and Co. (Publishers) Ltd, 1982 In this book the author had highlighted upon the jury system and its tradition. He has also mentioned some of the cases decided by jury having high national significance.He also has given the development and certain rules pertaining to the jury system. Similarly, he has given suggestions for improvement. This book is the major source from where the intensity to write the research paper has been drawn. 3. BishalKhanal, variation of Nepalese Law, capital of Nepal Bhrikuti pedantic Publications, 2000 In this book the author has analysed the development of Nepali law and also has pointed out some problems which have created dissatisfaction among the people in the judiciary. 4.RevatiramanKhanal, NepalkoKanooniItihaskoRooprekha, Kathmandu Appollo blow up labour Pvt. Ltd. ,2059 B. S. In this book the complete history of Nepals legal system has been sketched. From this book, I have taken the fact about the historical concept of the Panchayat and come up with the idea of amalgamation into jury system. 5. Rene David, Major Legal System in the World Today, London Stevens and Sons Ltd, 1985 In this book the various major legal systems have been analysed. This book helped me understand some of the major characters of the Common Law System. 6.Constitution of Nepal, 2019 B. S. , has also helped in the research for this is the constitution which has formally accepted the Panchayat notion though in a complete ly different notion in which I purpose to use it. 7. Some websites have really been helpful, most prominently the Wikipedia and also ones linking the Wikipedia with original materials used in the article. Bibliography 1. Lord Denning, What Next in the Law, London Butterworth and Co. (Publishers) Ltd, 1982 2. Bishal Khanal, Regeneration of Nepalese Law, Kathmandu Bhrikuti Academic Publications, 2000 3.Revatiraman Khanal, NepalkoKanooniItihaskoRooprekha, Kathmandu Appollo Offset Press Pvt. Ltd. ,2059 B. S. 4. Rene David, Major Legal System in the World Today, London Stevens and Sons Ltd, 1985 5. Blackstone Commentries Vol. triple &8212&8212&8212&8212&8212&8212&8212&8212&8212&8212&8212&8212&8212&8212 2 . Lord Denning, What Next in the Law, 1982, London Butterworth and Co (Publishers) Ltd, p. 33. 3 . Lysander Spooner in his essay on The Trial by Jury 4 . Samons, Loren J. (2007). The Cambridge companion to the Age of Pericles. Cambridge University Press. pp. 244, 246. ISBN978-0-521-8 0793-7. ttp//books. google. com/books? id=QAePyZ_Z1WkC&038pg=PA244&038lpg=PA244&038dq=dikastai+501+citizensv=onepage&038q=dikastai%20501%20citizens&038f=false. 5 . Acilian Law on the Right to Recovery of Property Officially Extorted, 122 B. C. http//avalon. law. yale. edu/ancient/acilian_law. asp 6 . Rene David, Major Legal Systems in the World Today, 1985, London Stevens and Sons Ltd, p. 311. 7 . BishalKhanal, Regeneration of Nepalese Law, 2000, Kathmandu Bhrikuti Academic Publications, p. 35. 8 . Magna Carta of 1215 http//www. fordham. edu/halsall/source/magnacarta. html 9 .Lord Denning, What Next in the Law, 1982, London Butterworth and Co (Publishers) Ltd, p. 37. 10 . Ibid, p. 37. 11 . Ibid, p. 62. 12 . Commentries III, p. 379. 13 . Lord Denning, What Next in the Law, 1982, London Butterworth and Co (Publishers) Ltd, pp. 36-52. 14 . Ibid, p. 33. 15 . America has embodied the jury system in its constitution. Their Constitution in 1971 Article VI and VII enshrined the provision as being handed down to them by the UK. 16 . BishalKhanal, Regeneration of Nepalese Law, 2000, Kathmandu Bhrikuti Academic Publications, p. 38. 17 . Ibid, p. 38. 18 .Ibid, p. 40. 19 . For example We can see the Parliamentary System adopted in Nepal. The exact copy that of the UK. But what we dont wish to understand is that the concept of the system was grow in 1215 with the signing of Magna Carta where we find it was accepted that All men are born free and equal and No taxation without representation. But in Britain the concept gradually developed and from the Glorious Revolution the form came into as a living organism giving the Parliament the touch on power. It took a span of more than 400 years. Similarly, also is the case with policy-making Parties.The wigs and Tories when they were formed, the King himself used to address the General come across and Mass Meeting during the election and ask for the people to vote for Tories who were the supporter of the King. A gain one noted example will have to be Cormwells licentiousness of the Upper House to kill King Charles I. Theoretically, the Upper House is a permanent body. They all show any concept is not an end but a means towards achieving an end. 20 . It is known that Nepal at some point of time was ruled by the Gopal Dynasty who came here along with Lord Krishna. 21 . Revati Raman