Notes of chapter 2 relating principles of procedural law (cursory notes)
a. Principle of natural justice.
The concept of natural justice is derived from the common law system. It is based on morality and ethics related values and delves into fair trial and judgment. The principle of natural justice comprises of two basic theories, they are:-
Theory of bias:-
It includes four types of bias ,
- Personal bias
- picuary Bias
- subject matter bias
- department bias
Theory of hearing
- It is related to the Latin term Audi alteram partem.
- This means that the parties to a case must be given
- equal opportunity to be heard.
- The notice needs to be given to the parties in time.
- They should be given the right to legal representation.
- Right to know the reason behind the decision.
- Right of cross examination.
Nepalese provision
- Section 176
- Section 271
A case relating to the right, interest or concern of him or her close relatives.
A case in which he/ she has become an attorney.
A case in which he/ she has decided the final order as in the capacity of judge.
A case in which he /she has given an opinion.
A case in which year she has substance your interest
b. Principle of Res judicata.
The principle of Res Judicata is derived from the Latin term which means the “matter already decided”. It originated from the common legal system and ensures fairness in case.
The objective of these principles is to not let anyone file a case twice and inflict the punishment meant for the same case twice. Every case must come to an end and judicial decisions must be respected. The concept of this principle is also similar to the concept of principle against Double jeopardy.
Importance and Aim of res judicata.
- Prevent the party from multiple judgments.
- Save resources.
- Save the time and efforts of courts.
- Note twice the threat.
Condition where this principle can be applied:-
- Same party.
- Same case.
- Same court.
- Same offense.
Same cause of action.
Exception of Principle of Res Judicata:
- Decision made by the court without having its jurisdiction as per the law.
- If there is no execution of judgment.
- If there is no locus standi.
- If there is no consideration of primary evidence in a case.
- If the judgment is done against the principle of natural justice.
- If there is any legal error in the case.
If there is no validity of documents in regards to those produced in a case.
Legal provisions
- Constitution of Nepal: - Article 20(6).
- National Penal anel (Code) Act 2074: -Section 9.
- National Country Civil (Code) Act 2074: - Section 14, Section 89, Section 94.
c. Principle of stare decisis.
The meaning of the Latin phrase stare decisis is to stand by previous decision. The concept of stare decisis is developed through a common legal system.
This principle directs the court to look at the past decisions for the same nature of case in present time. The objective of this principle is to bring consistency and certainty as it binds the court to follow the decisions which were priorly decided by the court.
It includes two basic elements:-
- Ratio Decidendi.
- Obiter Dictum.
Advantages
- Fairness and consistency.
- Flexibility- it can turn over the past decision as well .
- Saving time and resources
Disadvantages
- Rigid.
- Democratic way of decision making.
- Emphasis on the past.
Legal provisions.
- Constitution of Nepal 2072 : - Article 126(2)- all shall abide by the order or decision made in the course of trial by the court, Article 128(4)- all cell divide by in interpretation of the constitution made by the supreme court.
- Judicial administration Act 2073: - Section 18
d. Principle of Amicus Curiae
It is derived from the Latin term meaning friend of court. Amicus Curiae is a person who is not a party to the litigation but is permitted by the court to give advice on legal or respective matters that directly affect the case. It guides a judge or court.
Laws
- District Court Regulation 2075 - Rule 105
- High Court Regulation 2073 - Rule 157
- Supreme Court Regulation 2074 - Rule 147
In Nepal
- The concept is not much developed yet.
- It is in the developing phase.
- They are often lawyers.
Prepared and Edited by : Manish Rajak and Madhu Dahal
