Chapter 1: Introduction ( Procedure for ADR)

Chapter 1 

Introduction 

Substantive law defines the rights and duties of a person whereas procedure law is used to enforce the substantive law and it determines the procedures to be applied in judicial proceedings to ensure fair practice and due process of law. 

Procedure law prescribes the process to achieve legal remedy and the rules relating to:- 

• Jurisdiction
• Locus standi
• Limitation of time

Procedure law consists of the set of rules that governs the proceedings of court in civil, criminal, summary, special and administrative proceedings by governing the mechanism of how a legal case flows till its implementation.

Procedure law is the means of enforcing  rights or providing the redress of wrong which comprises the  rules regarding pleading and practice, evidence, appeal execution or judgements,  representation of counsel and other matters.

a. Importance of the study of procedural law

Procedural law is also known as formal or adjective law. These are the rules which ensure fair practice and consistency in the due process. These are the rules governing how a Civil and Criminal law proceeding  is administered by the courts. 

• Procedural law enforces the substantive law.
• Substantive law will remain as a dummy law, without procedure law. 
• Procedural law provides remedy in the condition of violation of rights.
• It provides a path for justice.
• It shows and laid down the rules and ways relating to:-
  • i. Who has the right to file a case ? Locus standi
  • ii. When a case will be filed? - Limitation
  • iii. Where will you file a case?- Jurisdiction.
• Procedural law ensures the fair justice and consistency pattern in due process of law.
• It fulfills  the objective determined by the substantive law.
• It incorporates the essence of natural justice.
• It shows the  proper way to restore the rights which have been infringed.
• It lays down the rules with the help of which substantive rights are enforced.
• It is deemed as a medium to obtain the objective of substantive law therefore it is called as law of action.
• The objective of substantive law remains unfulfilled in the absence of procedural law. 
• The rights conferred and enshrined in the civil, substantive laws and the Constitution itself can be enforced in a proper or desired time with the help of procedural law. 
• Substantive law cannot exist in absence of procedure law.
• Is a medium to avail the remedial system, if there is encroachment  of any substantive rights or laws. 
• It describes the steps and methods for having a right or duty of the judiciary enforced.
•  It acts as a vehicle to provide means and instruments for the attainment of substantive rights. 

b. Relation between substantive and procedural law.

Substantive law defines the rights and duties of a person and if such rights are violated then the procedural law shows the ways to restore such violated rights.

The relation between substantive and procedural lock can be examined and illustrate on the four different basis:-

• On the basis of definition: - Substantive law gives knowledge about the rights of people that they possess whereas the procedure law gives knowledge about legal proceedings taken in the condition where those rights are violated.

• On the basis of prescription: - Substantive law prescribes rights and duties whereas procedure law prescribes the procedures for the enforcement of such substantive law.

• On the basis of provision: - Substantive law provides the provisions of enforcement of rights as procedural law provides the provisions about legal proceedings.

• On the basis of goals: - Substantive law is concerned with ends whereas procedural law is concerned with means.

c. Summary and general procedure Laws.  

            General Procedure

It is the procedure excluding summary and special procedures. The general procedures are mostly mentioned in the ordinary laws, which apply within the whole territory of the state.

In context of Nepal the general procedure is understood as the procedures mentioned in National Civil Procedure C9ode) Act 2074 and National Criminal Procedure (Code) Act 2074 B.S.

Summary Procedures.

It is used for enforcing a right that takes effect faster and more efficiently than ordinary methods. In the context of Nepal it has been mentioned in Summary Procedure Act 2028B.S.

d. Special procedures

The procedure which is other than general and summary procedure, as mentioned in the Special Court Act 2059 is deemed as  special procedure. Some of the provisions regarding special procedure as per Special Court Act 2059 are as follows:- 

Preamble:-  to accomplish  the trial and decision of special types of cases in an effective and prompt manner.

Section 3:- constitution of a special Court, a bench in special Court shall be formed of three members each. 

Section 4:- The Government of Nepal may increase or decrease the cases offered to the special court by publishing on notice in Nepal Gazette. 

Section 6:- the trial and decision of a special type of cases shall be made by the special Court. 

Section 10:- summon may be issued.

 a person is within Nepal - 15 days excluding journey.

 a person is outside  Nepa -l 30 days excluding the time for journey

Section 16:- the special court shall have to decide a case generally within 6 months from the date of filing.

Section 17:- can file an appeal in the supreme court within 35 days of having a decision by the special court.

Section 18:- execution of judgment by any authority as per the final order of special Court or the concerned district court

Section 20:- dissolution of Special Court, Government of Nepal may dissolve the special court by publishing a notice in Nepal Gazette. 

e. Distinction between criminal procedural and civil procedural laws.

The difference between civil procedure and criminal procedure can be illustrated as follow:- 

f. Procedures for alternative dispute resolution negotiation mediation and arbitration.

Negotiation:-

 It is a dialogue and discussion between two parties. In this the dispute arises and is settled by the help of dialogue and discussion. Here, self discussion is encouraged and so it is deemed as an easy way to resolve the dispute. This is regarded as the first way for solving the disputes and if it does not succeed to solve the dispute with the help of negotiation then only the other means of settlement of dispute resolution is sought.

Mediation:-

Mediation is a settlement of a dispute of two parties with the help of third parties. The person acting as a mediator remains as a facilitator and neutral by maintaining confidentiality and resolving the disputes. Third parties act as a neutral and remain silent. Such third parties can give limited options to resolve disputes. 

Choosing mediator

One party chooses the mediator and sends notice to the other party. After that the second party can also choose another mediator. Afterwards the appointed mediators make the environment for discussion.

Role of mediator

• Will be neutral 
• Not act like a lawyer or judge.
• To destroy all the requirements afterwards.

Mediators make rules relating to clear hearing,making silent or switching  off mobile phones and also regarding use of polite words and time for discussion. And such rules are pasted on the wall. The mediator maintains a double party hearing system and rewrite the statement of parties in a polite words and also prepare a material document.

Mediation in Nepal.

The history of mediation in the context of Nepal has been more than 20 years. It was started with the help of Regulations issued by the courts. But then different laws with drafted and provisions were incorporated such as:- 

Mediation Act 2068, 

Mediation Regulation 2070, 

Constitution of Nepal:-

•  Article 51(k), 
• Article 127(2),  
• Article 217, 
• Schedule 8 

Arbitration

It is a process of settlement of disputes between two parties if the right is given to a third party to act as arbitrator. In arbitration the third party decides the case and provides a verdict. The person whom the two concerned disputed parties have trusted and chosen to just the case and solve the disputes between them entails the process of arbitration. The process is provided and is governed by Arbitration Act 2055.

Nature of disputes that are settled by arbitrator

The issues of contract in which it is mentioned can be solved by an arbitrator through arbitration if dispute arises.

Business nature types of civil cases (if both of the parties agree), should be registered in code and issues should be of a nature solved  by mediation.

Appointment of arbitrator

• If it is not mentioned in the contract regarding the arbitrator then the number of arbitrators should be three persons.
• It should be an odd number.
• If it is not possible to  appoint then an application should be given in the High Court.

Process of arbitration

• The arbitrator asks to give a claim, counter claim and response. After receiving a claim, within 30 days rejection or counter claim is given and after counterclaim, within 15 days answer is given and then the documents are exchanged.

• The procedures of arbitration are as per the provisions mentioned in contract and Act itself.

• If the act can not be covered then it should be done as per said by the parties. The notice about prosedure day needs to be given to the parties. 

• All arbitrators must be present to decide the final judgment but for minor decisions the presented arbitrator can do such decisions.

• The decision is given by the majority of arbitrators. But if such decision colloids then the superior arbitrator's decision prevailed. 

• However the unsatisfied party, if not satisfied with the decision then he/ she can go to the High Court within 35 days.

• The execution of judgment is done after 45 days of receiving notice to execute such a decision. But if it is not done within such a given time then one can give notice to the District Court within 30 days. 

Rights of arbitrator

• To ask the parties to be present.
• Do documentation and submit the document.
• Can appoint experts.
• To record verdict and evidence.
• If needed then they can make banking related decisions.

g. Principles of procedural fairness in relation to the Interim Constitution of Nepal 2063.

The principles of procedural fairness is mostly used in criminal cases as it deals with individual life liberty and freedom associated attributes. The procedures undertaken at the time of Investigation, judicial custody, running of case and punishment, must be fairness.

The trial should be fair as

• The hearing of the case must be done by an authorized buddy only.
• No illegal detention can be done.
• There should be no delay in court hearing procedures. 
• Both parties of a case should be given equal chances of fair hearing.

Pre trial.

• Not taking any person in custody because of personal choice.
• Everyone should be given the right to legal representation.
• Any act relating to torture cannot be done.
• Right to remain silent should be given.
• Right to express his statement should be allowed.

Trial.

• Free Legal Aid needs to be given for the appointment of a lawyer if a party is not able to appoint a lawyer.
• Right to remain silent is protected.
• Party to have the right to reject or do counterclaim of the opposite party.
• Person is given the right to state their view.

Post trial.

• Right to appeal.
• Reformative punishment.

Legal provisions.

• Constitution of Nepal: (2072) 
• Article 20 (Right relating to justice).
• Article22 (Right against torture).

• Interim Constitution of Nepal 2063
• Article 24 Rights regarding justice 
• Article 26  Right against torture

                                                                                                                                                                                                     Prepared and Edited by: Manish Rajak & Madhu Dahal