General Introduction to Procedutral law

Procedural law

Introduction of Procedural law

            Firstly we need to know the meaning of Procedure before we discuss about procedural law. Procedure – it is a way or process of doing something, especially the usual or in correct way. Therefore, procedural (adj.) is a process of doing something correctly. In the word Procedural, law is added.

            The term Law is derived from the Tutonic word “Lay” which means fixed and uniformity. The law is the system of rules which are legalized by the parliament (elected representative of people; legislature) and obeyed or accepted by the people. As the most essential element of state is sovereignty, in same way law is the central idea of sovereignty and of the justice. It maintains peace, order and security of the county.

            Now, we come to know that procedural law is that branch f law which shows the practical process or way and step for the resolution of conflict or disputes. As we should not forget that the laws are divided into two categories or division i.e.:

Substantive law

Procedural law

            Substantive law is that branch of law which is basic in nature which only defines what to do? What not to do? Procedural law determines the procedure or process to be followed in judicial proceedings. These two laws are strongly related to each other. Therefore, it is hard to distinguish.

Mainly, the arrangements are made in procedural law which can be distinguishing in 5 main divisions like:

1.      Summons

2.      Pleadings

3.      Evidence or proof

4.      Judgments

5.      Execution

For the enforcement of civil right and obligations a suit before a civil court is usually instituted. Code of civil procedure – in the procedural for trial and appeals including execution of order and decrees are laid down. The evidence Act regulates the relevancy, admissibility and probative value of evidence led in courts. The Limitation Act prescribes the period of limitation with which suits can be filed. The Court fees Act determine the amount of court fees to be paid on plaints and appeals.

      The procedural law is taken as a means of substantive law because it fulfills the purpose of substantive law. The substantive law can be activated by the dominance or power of procedural law, due to this influence in the substantive law can be radiant or powerful. This is the main reason behind the inter-relationship between these two laws. In procedural law there are many Acts, Chapters and different Manuals like;

Chapter of court management, Summary procedural Act

       Chapter of punishment, Special court Act and Limitation Act.

Definition

             “The mode of proceeding by which a legal right is enforced distinguished from form of substantive law which provides and defines the law such types of constitution constructive rights are cured or created only by the procedural law. The court is to administer the machinery as distinguished from its product that which regulates the formal step in an action or other, judicial proceeding. A form, manner or order of conducting suits or prosecution.”

            The term proceeding means – in a general sense the form or manner of conducting judicial business before a court or judicial officer from regular or ordinary process in form of law including all possible steps in an action form its commitment to the execution of judgment. The term also refers to administrative proceedings before agencies, tribunals, bureaus, or etc. in another sense the term proceedings mean any actions having investigation, hearing inquest or inquiry as pursuant to law.

Nature of procedural law

·         Simply it doesn’t creates the rights and obligation but there are some exceptions of this rules i.e. Right to Appeal, Right to file the case by the person who has locus standi and rights against bias.

·         Procedural law is “Lex fori”. It means procedural law is applied only within the jurisdiction and it may vary on the basis of nature of the welfare whatever the case may be universal or not. (Lex fori is binding within territory)

·         Procedural law has retrospective effect. The term i.e. retrospective effect and means it has the power to change a procedure in ongoing cases on the situation of changing of the substantive law or in the situation of the society.

There is a well known saying as well as a constitutional provision i.e. “No person shall be punished for an act which was not punishable by the law when the act was committed nor shall any person be subjected to a punishment greater than that prescribed by the laws enforced at the time of commission of offence.”

Example: Plane hijack by G.P Koirala then there was not laws punished because in 2013 B.S there were no laws regarding it.

Above justice principle may not be applied in case of procedure it may be changed and can be made contemporary. In some cases, it was started through different procedure. In other words, procedure may be changed in necessity of time.

·         Procedural law is the law of remedy or law of action. It is that branch of law which governs that process of litigation so it is said “law of action” in the case whatever civil, criminal, summary, special or general, likewise judicial or Quasi-Judicial. It is the means to achieve the ends made by substantive law. It is related with the conduct of relation of the courts of the litigants.

                                                             Importance of procedural law

            Procedural law is a means to achieve the goal of substantive law without procedural law no rights or duties are applied. Substantive law is related with the arm of justice but procedural law is related with the method or manner, forms or order to achieve the justice. So it is impossible to obtain the justice which are regulated or system without appropriate means or tools to achieve the justice which are regulated or systematized by procedural law. That is why the law of procedure and the law of substantive matter are different sites of same coin.

 For example – a wife has a right to achieve the property from her husband in particular situation. Such types or right is substantive rights but to obtain the property from her husband, she must fulfill some procedures i.e. she should go to prescribed court within prescribed time which is governed by procedural law.

            Procedural law is related with various procedures i.e. it may be criminal, civil, summary, special, general procedures, etc. That is why, procedural law is inherent part of substantive law and its importance is similar as the importance of substantive law. (Sharbhut)

            In absence of knowledge of procedural law we cannot achieve the goal of substantive law. All the rights provided by substantive law are useless. In other words procedural law is known as law of remedy or law of action by which a substantive law are alive. Somewhere procedural rights also seems as substantive rights i.e. right to fair trial, right to be silent, right to obey, right to created by locus-standi, etc. Thus aim of justice cannot be fulfilled without procedural law.

            In the situation of application of rights and duties and in the situation of deprived of such rights the victim party has the remedial right. Both rights are guided by systematic legal procedure so without fulfilling the procedure or procedural guide lines i.e. jurisdiction, limitation, locus-standi (hakdaiya) etc. nobody can achieve the justice. So to be acknowledged about the law of procedure is important.

Constitution of the state has made basic fundamentals for the substantive provisions of other laws so all the National laws or By laws which are made by parliament, International treaties and agreements which creates right and obligations are the examples of Substantive law.

      Mainly, principle of natural justice, principle of Res-judicata, principle of stare decisions, principle of Ratio-decidendi, principle of leaches, principle of limitation, principle of locus-standi, principle of jurisdiction are regulated by procedural law. The provisions made by every constitution i.e. justice according to law, due process of law, procedure established by law are major or common standards for making the procedural law in their respective State.

      Civil code, 2020 (12^th amendments), chapter of court punishment, chapter of punishment, registration money laundering, chapter of Nasodharoril ( bailment and lease) and chapter of deeds on official documents are mainly concerned with procedural law. Similarly, Summary procedure Act 2049, District court procedure 2052, Appellate court procedure 2048, Supreme court procedure 2049 and Government case procedure 2055 are some examples of the law of procedure.

A.)Different between Substantive Law and Procedural Law

Substantive Law	Procedural Law
It defines the legal relationship between the person and person or person and state. Example : Article 12 of the Interim Constitution of Nepal, 2063 i.e. Right to Freedom	It defines the process that how to achieve the goal of Substantive Law. Example: Right to Constitutional remedy (Article 32 of Constitution) i.e. right to proceed in the manner set forth in Article 107 for the enforcement of rights conferred by this part is guaranteed.

B.)Difference between Civil Procedure and Criminal Procedure

Civil procedure	Criminal procedure
Section 10 chapters of court management of civil code has made a provision about the procedure of civil cases, similarly schedule 2 of government case Act 2049 has given list of cases in which the cases are started by government itself being a plaintiff.	Section 9 chapters of court management of civil code and schedule 1 of government case act of 2049 has given a list to criminal case.
Generally civil procedures are started by sufferer his/ she through complaint paper in related jurisdiction with locus- standi.	Generally criminal procedure is started by related district government attorney and police authority on the basis of FIR recorded their off.
Generally civil procedure is started on court directly by the sufferer.	Criminal procedure is started by police report and charge sheet on related jurisdiction jointly.
It is compulsory to pay court fees by plaintiff as according to section 3 of court fee Act 2017. Civil cases are generally related with the post property and prestige of the person and the person who has made wrong activities is called defendant only.	There is not necessary of court fee or file the charge sheet. Criminal cases are generally related with serious offence and against the state and society the person who commits the crime is called accused person.
Civil cases are less harmful than criminal cases. This is because society can digest such minimal activities made by the society member.	Criminal cases are harmful to the state and society.
Civil jurisdiction is liberal rather than criminal jurisdiction or it can be changed by the request of the parties only in the situation, if there is not necessary for investigation by the court.	Criminal jurisdiction mostly depends upon the local court for the cause of investigation through local police.
Civil cases can be adjured on the situation of section 12 of court management of civil code.	Criminal cases cannot be adjured on the basis of request of the parties. The adjournment is possible on the ground of section 190 and 191 of court management of civil court and section 10 chapter of theft.
Generally defendant should not be compiled to be in the detention custody.	Accused person should be in detention compulsorily. It is the court refused to bail on behalf of accused.

C.)General Procedure, Summary and Special procedure

General Procedure

            According to section 7 of judicial Administration Act 2048 except and otherwise mention in other laws district court has complete jurisdiction to hear and decide the cases whatever they may be civil or criminal as a first instance.

            Generally the cases which has nature or are not must urgent to decide, there general procedure is applied.

For example; cases with murder, attempt murder, theft, looting etc in criminal aspect and partition, money laundering, rent, marriage etc. are some example in which general procedures are applied.

            Section 4 of civil code has made some provision that this code is general. It is applicable in all situation unless and otherwise different provision has made for different cases by separate and special laws.

            According to section 1 of court management of civil code of authority and jurisdiction has mad different procedure as per that law the procedure will be same. All the cases are lodged through general procedure. But if there has been made any provision on any separate law.

            All the matters in which there needs detailed, quick and comprehensive investigation generally needs general procedure of law example; for the time of summon 35 days. And in the situation of out of capacity to summit the defendant the time may be expanded not more than 30 days (according to section 59 of court management.

Summary Procedure

            Summary procedure is regulated by summary procedural Act 2028. The rational or background of this Act is in the petty offences. There should be decided in short period without the consequence of justice may be useless. For example; alimony (mana chamal).

            The aim of summary procedure is to establish absolute justice in the time because this well known saying justice delayed is justice denied.

            All the cases which are enlisted in schedule 1 of this Act the procedure will be applied as according to summary Procedure i.e. according to section 8 the time of summon is 15 days and time to deny the cases in 6 month.

Special Procedure

            Special Procedure Act 2049 is prevailing for this purpose; for the cases which has serious nature or more harmful to the society and there mix special procedure. Act is applied.

            Special court is not general court which are already established by law but such types of court is established by notice of government under the advice of judicial council for the contemporious cases i.e. all the cases which are investigated by abuse of authority of commission or corruption cases. There is the provision of appeal against the decision of special court if the party has unsatisfied he or she can appeal in supreme court.

            The jurisdiction and the authority of special court is determined by the notice of government which is published in Nepal Gazette. There is provision to constitute the special court with 3 members i.e. one is president and other two are member decisions of the court will be held by unanimously.

  D.) Judicial and Quasi-Judicial Procedure

Different between Judicial Procedure and Quasi-Judicial Procedure

Judicial Procedure

Quasi-Judicial Procedure

All the procedure applied by general courts, tribunals, special court which are constituted to meet the goal of Justice, always they use judicial procedure. The characteristics of judicial procedure are; it mostly fulfills the concept of natural justice. Being a complete judicial process such procedures are vague and time consuming but these process are recognize by the court globally. Judicial procedure has the aim to establish absolute justice i.e. no one will be deprived from the justice. On the other hand we can see “nine criminals may be released but not a single innocent be punished.”

Quasi-judicial procedure is related with administrative organs of government or the state. These organs have the authority to administrate to the general public. So public administration consists of all those operations for achieving the peace and security in the society by enforcing the public policy made or declared by the state. Public administration denotes all the works involved in the actual conduct of governmental affairs regardless of the particular branch of any types of government. The main job of the government is to maintain justice and peace in the society. Such aim can only obtain by any types of government through application of legal procedure which are in Quasi-Judicial in nature.

Quasi-Judicial Procedure

            Generally there is no absolute different between judicial and Quasi Judicial procedure but there is slight difference in judicial process as it is conscious about natural law principle or principle of natural justice. On the other hand quasi-judicial procedure does not meet the principle of natural justice. So there is absence of fulfilling of aim of absolute justice in quasi judicial procedure. So, people do not fully believe in Quasi-judicial procedure as such procedure depends upon the policies of prevailing government. Government policies may differ according to their political conventions. 

In simple sense, the difference between these to procedure is due to the maximum use of discretionary power in judicial procedure.

Generally, administrative officers as C.D.O, D.F.O tax officer etc. or bodies (agencies) created by the state exercise Quasi-Judicial procedure. Such procedure they apply in the situation of investigation and making the decision. The powers of administrative agency to adjudicate, the rights of persons before it always exercise the procedure which has Quais-Judicial nature. But a modern court has developed the principle that Quasi-Judicial bodies also should fulfill the procedure as mentioned on natural Justice.

3.) Recent Trends

A.) Adversary (Accusatorial) and Inquisitorial system and Mixed System

Adversary (Accusatorial) System

Mainly two types of legal system are famous in the world i.e. common legal system and civil legal system or American or British legal system and continental legal system and French legal system. These two legal systems mainly differs on the procedure on litigation, common law consist the concept of adversarial type. So, it applies accusatorial method upon procedural law. Whereas, civil or continental legal system, realize the procedure of inquisitorial method.

Above two concepts we can identify that these two different methods are based upon simple difference of nature i.e. “a person is always supposed innocent until proved guilty” on the other hand there is opposite concept in civil or inquisitorial method i.e. “a person who is accused is supposed guilty until proven innocent.”

Accusatorial proceeding on litigation is also known as American Jurisprudence because this common law concept is fully applied in American legal procedure. In such procedure the government accuses and bears the burden of proving a guilty of a person for a crime.

But in inquisitorial system the court officer itself blame any person, itself investigates the proof against the accused and decide the case.

In inquisitorial process the person him/she should prove him is responsible to prove he/she innocent about the accusation through evidence. The term Inquisition or inquisitor refers the investigation or an inquest, particularly the investigation of certain facts. By this procedure the accusation primarily collect the evidence against the wrong doers or defendant. After accusation by the accusator, if the accused person who is supposed to be culprit he must prove himself innocent through evidence else the court announces him/her culprit.

                                                             Mixed system

There are many countries in which both systems are applied. Mainly common law countries has accepted adversary system i.e. Nepal, India, America, Britain, Japan etc. Though there autonomous concept that is inquisitorial process is also continued. In our legal history the duty of king was to deliver the justice to the people (Naya Napae Ghorkha Janu: Ram Shah).

The king himself investigated, the evidence, evaluated, the evidence against accused person and decide the case himself by support of some personnel’s i.e. Ditthas, Bicharis, Dharmadhikaris, etc.

            After promulgation of civil court 2020 B.S Nepal has accepted common law concept and start the codification law i.e. an accused person is always supposed innocent until he/she proved guilty. This is common law provision. The constitutional provision i.e. no one should be compelled to be witness against him/herself Article 24 (7). The person accused shall not presume guilty until proven guilty. (Article 24 (5)

            On the other hand Nepal has not fully abandoned her autonomous legal procedure which we can see in the provision of Muluki Ain civil code section 142,115,171,172 are some example in which inquisitorial method and the provision of section 144 is mixed provision i.e. accusatorial and inquisitorial.

                       Development and Recent trends of Procedural law in Nepal

            Law born with society develops with society and dies with society. So, law is a kind of mirror and shadow of the society. If the society is developed and civilized then law is also developed and civilized. Law is the expression of living society. Society is changeable with the time. So, it is connected with the development of procedural law. In our country it has made many turns in the history. Procedural law being  the opposite site of substantive law it also change or develop along with substantive law. In our early legal history, there was strict liability for the crime i.e. eye of eye and teeth for teeth. This approach has changed for the time being and procedural law also has changed. A concept of relative liability has established. On the other hand process of delivery of justice also develop and changed as according to development of science and technology. For example; in early days the time of summon or limitation were based upon trekking days but now it has changed.

            A recent trend of procedural law is developed rapidly by utilization of equipment developed by science and technology. For example; test of DNA, postmortem report and investigation by dog smell, viscera test, blood group test in the course of investigation. Similarly court procedures are also changed in the sense of delivery of justice i.e. procedure of summon may be concluded by email, National newspaper, office address, etc. copy of deeds may be provided by the electronic media, photocopy, fax etc. The time duration of summon is reduced as according.

            Court are divided in several benches on basis of nature of the cases i.e. civil criminal commercial or Juvenile delinquency, labour court, commission for the national revenue, special court dept recovery, tribunal etc. On the other side A.D.R system are also applied on the process of litigation i.e. mediation, arbitration etc.

 

Basic Principle of Procedural Law

Locus Standi

            A person who desires to complaint or claim, by filing a suit or plaint. The matter that he/she has the rights to make such a claim or demand or has legitimate interest or concerned therein or therewith. According to Black’s  law Dictionary, the term Locus Standi means the place of standing, standing in court with right to appearance for the Justice or before a legislative body on a given question.

            There is a saying that no one can sue in the name of another.

Locus Standi under Writ Jurisdiction

            According to supreme court by laws 2049 rule 40 sub rule 1 and 2, the provision made by interim constitution 2063 Article 32, 107 (1and). 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. 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 Court

The case in which Nepal government is plaintiff, and on the case of bribery any person has the locus standi to suit the case (according to sec 82 of civil code 2028). After the person who is suffered himself /herself has locus standi to file the case against the wrong doer’s defendant.

According to section 10 of chapter of court management of civil code 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.

Civil code chapter of sec 83 of court management (ccc 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.