Cyber Law: Its Implementation in Nepal

question marri ripen offer on A COMPARATIVE proffer FOR TRIAL BY JURY IN NEPALI LEGAL SYSTEM Submitted to BA/LLB Programme Nepal honor Campus Faculty of impartiality Tribhuvan Univer baby-sity Submitted by SauravNath Pant BA/LLB, third Year Roll No. 13 Section A March 3, 2013 1. 1 Introduction I micturate devastationlessly been a firm believer in tryout by gore. Somehow it is inborn in me. As it is in around incline hands. It is a lesson which has been handed d knowledge from unmatchable gene proportionalityn to a nonher during the last 800 days.The trial by control panel a usance held dear to the British is a discriminatory proceeding in which a venire either makes a decision or, makes visualiseings of stratum which atomic number 18 and then applied by a think. It usu solelyy comprises of 12 hands. The board dodge is a organisation veritable in the cat valium Law, interpreted as its integral part which earthly c erstrndates that No alleviate val et shall be captured and or, imprisoned or, disseised of his freehold and or, exiled, or in either guidance destroyed, nor testament we proceed against him by force or proceed against him by arms, just by the constabularyful judgement of his peers. The instrument panel strategy of regularisations brush off be traced back upto the classical and the roman era.The Greeks were succeeded by the Romans while the Roman Empire collapsed. just it is largely the British corpse that has embodied the control board carcass and pissed it as a usance of the crude Law carcass. top executive William the vanquisher found the Norman Dynasty in England by his conquest of England in 1066. The instrument panel arranging was introduced by a Norman force in England. One day the King was watching the nicety deliin truth process, and sight that a single judge could not al guidances impart fair jurist. and so he observed that twelve laymen could curb better evaluator than a ju dge.As a result he asked his advisors to mollify a jury of 12 population on with a judge to settle the disputes filed at the court of jural philosophy. The Magna Carta of 1215 further secured trial by jury stating that, * For a trivial offence, a free man shall be fined exclusively in pro wad to the degree of his offence, and for a serious offence correspondingly, plainly not so heavily as to un plate him of his livelihood. In the same way, a merchandiser shall be sp atomic number 18d his merchandise, and a husbandman the implements of his husbandry, if they pin upon the mercy of a royal court.None of these fines shall be imposed except by the sound judgment on oath of reputable men of the neighbourhood. * Earls and barons shall be fined only by their compeers, and in proportion to the gravity of their offence. * To each man whom we train deprived or homeless of lands, castles, liberties, or rights, without the lawful judgement of his equals, we result at erstwhile restore these. * If we arrest deprived or dispossessed any Welshmen of lands, liberties, or anything else in England or in Wales, without the lawful judgement 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 do us and ours in the same way. It has already been bring upd that the accounting of control panel formation covers over a season period of 800 geezerhood. During that period the board trunk real, and changed with clock solely never discarded. Some instances of its course of ontogeny is siren below 1. The Principle of satisfying This principle was foundered in 1367 and it lasted for 600 old age until 1967.In 1967, the parliament altered it. The verdict was held validated if the major(ip)ity was ten to twain. 2. T he jury were unplowed without food, heat or light once they retired to consider their verdict. The time hallowed formulation was, Without meat, drink, fire or movedle 3. at one time only reasonable men (with whatever susceptibilitys) 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 pick outrs list are qualified as jury men. Yes, in the previous(prenominal) 800 years or, so the instrument panel outline has changed a lot.So much so that master key Denning himself considers nineteenth century to be the golden age of Trial by board. But it is not these changes that have led Lord Blackstone in his lectures in 1758 to course tongue to Trial by jury ever has been, and I reliance ever leave be, determineed upon as the celebrity of the English law. It is the most intuitive privilege which any subject lavatory enjoy, or wish for, that he housenot be af fected either in his property, his liberty, or his person, but by the unanimous concur of twelve of his neighbours and equals It is the display cases distinguishable by the gore and the way in which one man whitethorn be convicted.A person whitethorn only be convicted if his equals (or, in the bounteous sense- the society) draws him to be guilty. Instances have been recorded w here(predicate) the Jury has upheld justice worked for the development of human rights, and notwithstanding acted as an important check against the state power. The cases will be discussed later but a special mention to the case of the Kings Brewer and the 7 Bishops is to be made here. The verdict of the Jury defied the powers of the king and sent the social unit of the democracy into partying.Also the brass brings forth the sense of amply Drama, into the courtroom. Nevertheless, the advantages offered such as bounteous mine run 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 subjection in law are the genuinely reason (along with position of being once ruled by England or, having true ballpark Law) that has led a number of countries equivalent America, Australia, Austria, Belgium, Canada, Greece and so on to have the Jury organization.Our good motherland, Nepal however has not authentic the Jury System everthough interest a more thanover mined form or, in its own way a erratic form of legal system which is sympathizen to be highly dominated by the greens Law System. 1. 2 groundment of job It is a matter of fact that we find in Nepal the large dominance of the Common Law System. Moreover we freighter say that Nepal has get hold ofed the Common Law System at large.The characteristic feature of the Common Law System such as precedent, the role of the judge, the role of the lawyers, the power in the settle to make the law and in addition the powe r in the judge to empathize and enlarge the scope of the law and so on are found in the Neaplese law. They do found the high make for of the Common Law system into the Nepali efficacious System. But one major characteristic trait s coin bank mud to be embodied into the Nepali Legal Systems, i. e, the Jury System. The whimsy to forward the affect of Jury system in Nepal can in like manner be feigne by dint of a little change in the comity.In many countries of continental Europe and japan the belief that a single judge is not a judge has play significant role in fortify the quality of justice, therefore they normally indite the bench of three judges steady at the trial level. At the appellant level hearing by more than half a dozen judges is a usual legal practice. This design of plural adjudication has not been yet accepted in Nepal, exception to the Supreme tribunal and Appellate Court where normally two judges decide the case.At the trial level, till today, the ca se is being decided by one judge, which leads to casing imperfect justice and therefore nigh(prenominal) sort of dis-satisfaction in the people as seen in Nepal. However, here we necessarily do not train to imply that the Jury system as seen in England is necessary but we may say more definitely and dogmaticly, for lesson Japanese did not follow the Jury System but accepted the base of securing assistance from the assistant judges and report card groups. Instead of Jury, the Chinese accepted the invention of People Assessors and Judicial Committees making them answerable to find the truth in the case.Even the Indian courts, on some ocassions, have begun to compose such learn groups and accept the rule of human race participation particularly in the LokAdalat. Public participation is an important thought for the growth in the Judicial culture. hither the Jury will pay a great role to develop public confidence toward justice system. Our system in delivery in justice is f ractional and the in polish off thing could not give complete achievement. thusly, is it not reasonable for Nepal to accept the Jury System?Similarly, the question composition besides breasts to find the answer to whether knowledgeability public participation can cause to solve the dissatisfaction seen towards the Judicial system. In Nepal, we in addition have the business of fetching any notion as an end and not as a means towards an end. The look into publisher will in like manner look to give solution 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 tribunal. It looks to give appriseion towards the form in which we can apply the Jury System in Nepal. 1. Hypothesis History is the past wisdom and a storehouse of knowledge. It eases to actualise the past, the coming up to the present time and in like manner predict for the future. Nepal is a well-situated country as diachronic ly she is very rich. The bring through up 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 invention as cognize to the world by the name of Jury System. But Nepal acceptedly has the fundamental printing of the Jury System known to her and to the history as the panchayet.The adjudication of dispute by the people themselves was done in the Kirat and Lichhavi period finished Panchalika and Grampanchayat. This concept fundamental to our land had been unconnected and resurrected by King Mahendra in the 2019 B. S. constitution. So, it is not necessary as a exclusively 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 bear the wisdom of Great Britain for practical usage.Hence, basically the merging up of the system into the Judiciary will give rise to our own set of the Jury System. The 2019 B. S. Constitution had established the various level of Panchayat officially. It was taken moreover as an Administrative bole than a judicial one. It had some judicial 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 variety of the Jury System. Similarly, while looking towards the notion through the economical 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 lawsuit the country and be accepted by taking into consideration the conditions prevalent in Nepal. The functioning of the system should also be somewhat which will suit our country. For poser 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 start instance, all should be qualified but only for the small types of crime. For complex cases of fraud, keen panel should be created or, at least people who can understand should be selected. The internal functioning should be knowing to meet the need. The key complete in the research will be amalgamating impost into the jury, establishing a more need accommodate Jury System taking into consideration the country as a whole and also to find solution to the economic problem that may arise from judge the Jury System.However, initially the research constitution will establish the Jury System as a positive way forward. 1. 4 General and Specific quarry The objective in general of this instruct is to establish the nee d 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 urge ways by which the jury can be made economically viable. 2. To suggest the way in which the Panchayat concept and the jury system be alter in order to form an Anglo-Nepal crown of thorns Jury System. 3. The research paper will also look to furnish the throw of action such as the mass needed for conviction, the expertise needed to sit as a juror in complex cases and/or, political 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 break pour down the Jury system its pro s 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 especial(a) 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 Methodology This study is based on doctrinal method of scientific research. Hence the research methods of field survey and principal(a) empirical data gathering are not applied. Rather it is textually driven. 1. 8 boldness of Study For the use of conducting the study on the topic, the Seminar Paper will be separate into five chapters * Chapter 1 deals with the introduction of the jury syst em 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 concluding chapter which looks to furnish suggestions for the way in which the jury system can be adopted and the problems be countered. 1. 9 writings Review For the purpose of the research, I have gone through the following research works, keeps, constitutions and websites. 1.A research paper by Krishna Prasad Sharma Nepal on Restructuring of the Judiciary in Nepal with special type to Access to Justice. Here the precedent 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 succeeding(prenominal) in the Law, London Butterworth and Co. (Publishers) Ltd, 1982 In this deem the author had highlighted upon the jury system and its tradition. He has also mentioned some of the cases decided by jury having high content 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 blood from where the inspiration to write the research paper has been drawn. 3. BishalKhanal, Regeneration of Nepali Law, Kathmandu Bhrikuti Academic 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 equilibrate Press 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 th e idea of amalgamation into jury system. 5. Rene David, Major Legal System in the adult male 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 completely various notion in which I purpose to use it. 7. Some websites have very been helpful, most prominently the Wikipedia and also ones linking the Wikipedia with legitimate materials used in the article. Bibliography 1. Lord Denning, What adjoining in the Law, London Butterworth and Co. (Publishers) Ltd, 1982 2. Bishal Khanal, Regeneration of Nepali Law, Kathmandu Bhrikuti Academic Publications, 2000 3.Revatiraman Khanal, NepalkoKanooniItihaskoRooprekha, Kathmandu Appollo spark off Press Pvt. Ltd. ,2059 B. S. 4. Rene David, Major Le gal System in the World Today, London Stevens and Sons Ltd, 1985 5. Blackstone Commentries Vol. leash 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 get on of Pericles. Cambridge University Press. pp. 244, 246. ISBN978-0-521-80793-7. ttp//books. google. com/books? id=QAePyZ_Z1WkC&pg=PA244&lpg=PA244&dq=dikastai+501+citizensv=onepage&q=dikastai%20501%20citizens&f=false. 5 . Acilian Law on the Right to Recovery of attribute 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 i n 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 furnish 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 rooted in 1215 with the subscribe 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 sole power. It took a frustrate of more than 400 years. Similarly, also is the case with Political Parties.The wigs and Tories when they were formed, the King himself used to hollo the General concussion and Mass Meeting during the election and ask for the people to vote for Tories who were the supporter of the King. Again one storied example will have to be Cormwells dissolution of the Upper foretoken to kill King Charles I. Theoretically, the Upper residence 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