Legal Aid

Legal Aid

Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial. A number of delivery models for legal aid have emerged, including duty lawyers, community legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to legal aid.

Legal aid has a close relationship with the welfare state and the provision of legal aid by a state is influenced by attitudes towards welfare. Legal aid is a welfare provision by the state to people who could otherwise not afford access to the legal system. Legal aid also helps to ensure that welfare provisions are enforced by providing people entitled to welfare provisions, such as social housing, with access to legal advice and the courts. Historically legal aid has played a strong role in ensuring respect for economic, social and cultural rights which are engaged in relation to social security, housing, social care, health and education service provision, which may be provided publicly or privately, as well as employment law and anti-discrimination legislation. legal aid is essential in providing individuals with access to justice, by allowing the individual legal enforcement of economic, social and cultural rights

LEGAL AID IN NEPAL

Introduction

Legal aid service is new for Nepal. Some four decades ago the Supreme Court of Nepal appointed two lawyers for the defense of clients from the weaker section of the society. Those lawyers were responsible for providing legal aid to those clients who were unable to pay lawyer's fees for the cases filed at the Supreme Court.

Over two decades ago Nepal Bar Association initiated a small scale legal aid programme for the economically and socially vulnerable section of the society. However, this service was available only in the capital city.

In 1980s judiciary of Nepal felt the need of free legal aid for weaker section of people at various courts in the Kingdom. In this regard a proposal was forwarded to the the Government of Nepal. The the Government of Nepal accepted the proposal to appoint one lawyer for each subordinate court.

The above plan was implemented later, and presently one lawyer is appointed at each Court of Appeal and in most of the District Courts. They are paid some remuneration on monthly basis.

To make the statutory provision for providing legal aid to indigent people in 1997 Legal Aid Act was promulgated. Legal Aid Rules, 1998 has been issued to regulate the procedures in providing legal aid. In addition to the above mentioned legal aid services, free legal aid service has also been provided by some private lawyers and voluntary organizations.

ADR in Nepal

Dispute resolution through mediation, conciliation, counselling and early neutral evaluation has been used increasingly during the past decade and already plays a significant role in the justice system in Western Australia. These procedures are generally termed "alternative dispute resolution" ("ADR"). Litigants often prefer settlements achieved through ADR because it is faster and less expensive than waiting for a decision from a judge. ADR sometimes achieves results in pending cases. Should there be mechanisms to encourage ADR prior to the commencement of litigation? At what point should ADR be required after the commencement of litigation: earlier or later? Who should have responsibility for initiating ADR: the Court or the parties? Should ADR be performed by Judges, Registrars or specialist ADR practitioners? Does the legal profession understand the advantages of ADR well enough to recommend its use wherever appropriate? How are clients encouraged towards or discouraged from using ADR?

At present ADR is used in the civil justice system. Is there a role for it in the criminal justice system? If so, what is the nature of that role? Should there be a formal system of plea negotiation instituted?

Nepal Law Commission

A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring. Their functions include drafting revised versions of confusing laws, preparing consolidated versions of laws, making recommendations on updating outdated laws and making recommendations on repealing obsolete or spent laws.

Nepal Law Commission is the statutory independent body created by the Nepal Law Commissions Act 2007 to keep the law under review and to recommend reform where it is needed

The Nepal Law Commission (NLC) was first constituted by an executive decision in 1953, immediately after the down of multiparty democracy. The second, third, fourth and fifth Commissions were constituted in 1960, 1963, 1972 and 1979 respectively. All those Commissions were temporary in nature. The NLC was given permanent status only in 1984. After the restoration of multiparty democracy in 1990, the NLC was restructured with the mandate commensurate to the changed context. It was again restructured in 2003 with timely changes in its mandate and composition. Now, the Commission is a statutory body under the Nepal Law Commission Act, 2007, which was promulgated on 14 January 2007. It is to note that until then it used to be constituted by the executive decision.

Composition of the Commission

The Commission consists of nine members including the Chairperson, Vice-chairperson and seven members.The Chairperson and the Vice-chairperson are appointed by the Government of Nepal for five years. Other three members consisting of at least one woman are nominated by the same for two years. Retired judges of the Supreme Court or those who are qualified for the same are eligible to be appointed as the Chairperson, Vice-chairperson and members.

The Secretary at the Ministry of Law, Justice and Parliamentary Affairs, Secretary (Law) at the Office of the Prime Minister and Council of Ministers, a Deputy Attorney General nominated by the Attorney General of Nepal and the Secretary at the NLC, who also serves as a Member-Secretary, are ex-officio members.

The Government may appoint not more than five members as honorary members to the Commission from amongst outstanding experts in the pertinent field.

There is a provision of a Recommendation Committee composed of the Minister for Law, Justice and Parliamentary Affairs, Chairperson of the Law, Justice and Parliamentary Committee of the House of Representatives* and Chairperson of the Nepal Bar Association to recommend to the Government for appointment in the post of Chairperson, Vice-chairperson and members of the Commission.

Function, Duty and Power of the Nepal Law Commission

To draft new legislation and amendment of the statute with explanatory notes,

To codify, unify and review existing laws,

To draft legislation to include treaty obligation,

To exchange ideas and information with law commissions and law drafting agencies of other countries,

To carry out study and research works,

To make consultation with stakeholders,

To obtain expert service.

To prepare annual programs and annual progress report,

To accomplish other functions relating to law and justice as prescribed by the Government and as deemed necessary by the Commission itself,

To make necessary recommendation to the Government.

Nepal Law Commission

Motto   Reforming the Law For Reducing Justice in Society and Promoting Good Governance under the Rule of Law

Formation           First 1953; Current 14th January, 2007

Type      Agency of Government of Nepal

Legal status        Permanent

Purpose/focus  Law Drafting in Nepal

Location               Singha Durbar Kathmandu

Membership      Chairman, 1 Permanent Member, 1 Member Secretary, and 6 Part-time Members

Chairman             Baburaja Joshi

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Introduction of Nepal Bar Association

Nepal Bar Association (NBA) was established in December 21st 1956. At that time, legal education in Nepal was in primitive stage. Thus, most of the lawyers were licensed on the basis of their experience in the legal field and without any academic qualification in law. Gradually, afterward law graduates from the universities started replacing traditional lawyers and now a days most of the member lawyers are with formal academic degrees from the universities. In its preliminary stage NEBA was functional without formal registration and formally in the year 1963 His majesty's Government of Nepal registered it as a professional organization under the provision of National Guidance Act 1961.

Previously the Supreme Court of Nepal was the authority to issue a practicing license. Moreover, Disciplinary Committee of the Supreme Court of Nepal was responsible for any kind of disciplinary action against lawyers. As a result of continued effort of NEBA in the year 1993 Nepal Bar Council Act was evolved and Nepal Bar Council composed under provision of above act has full authority for issuing license to lawyers and to take disciplinary action against any lawyer. Bar Council Act 1993 has recognized NEBA and Vice-president of Bar Council is ' President of NEBA. Additionally, most of the Members of Bar Council are nominated/elected amongst members of NEBA. Legal Aid Act -1997 has also recognized NEBA. Government sponsored legal aid activities are also to be conducted through NEBA. Central Legal Aid Committee, a statutory body, chaired by HMG Minister of Law and Justice, comprises president of NEBA as ex officio member and secretary of NEBA as ex officio member-secretary. Thus NEBA is not only a professional organization but also a statutorily recognized institution having responsibility of performing some legally specified duties.

Nepal Bar Association is the federal organization of Nepalese practicing Lawyers. The Central Executive Committee (CEC) is the supreme executive body of it, which is popularly known as NEBA. Direct voting of all members elects Central Executive Committee. In addition to CEC, NEBA has 83 units, spread all over the country. Composition of such units are based upon structure of courts. The CEC has 17 officials containing President - 1, Vice-President - 5(from 5 Regions), Secretary-General - 1, Treasurer - 1 and Members - 9.

Requirements to enroll as a lawyer

Nepal Bar Council is a statutory organization which issues license and also regulates conduct of lawyers.

Nepal Bar Council grants license to practice for those candidates who succeed in the Bar Council's licensing examination. Usually to be eligible to participate in the licensing examination the applicant should have at least graduate degree of law (B.L/LL.B. ). All licensed lawyers have to update their license in the Nepal Bar Council in every five years intervals.

Under the Nepal Bar Council Act of 1994, separate code of Ethics is enforced, which has internationally comparable provisions.

Disciplinary Functions:

Bar council has ' Disciplinary Committee' which hears any complaint against any enrolled lawyer. It has power to warn the lawyer, suspend license and to terminate the license. Against any decision taken by the Bar Council ' Disciplinary Committee' could be appealed in the Supreme Court. No provision of pecuniary compensation to the client is introduced yet.

Practice by Foreign Attorneys

Practice by foreign attorneys requires the permission of the Supreme Court of Nepal. For foreigner attorneys no permanent permission could be granted. They could be authorized to argue on case to case basis

pro-bono services of lawyers

Pro bono publico (usually shortened to pro bono) is a phrase derived from Latin meaning "for the public good". The term is generally used to describe professional work undertaken voluntarily and without payment as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms. Pro bono service, unlike traditional volunteerism, uses the specific skills of professionals to provide services to those who are unable to afford them.

Pro bono lawyers are lawyers who take cases for free. They can practice any type of law from administrative and civil law to criminal. Some state bar associations require that attorneys complete a certain number of pro bono hours per year.

Some attorneys go over and above the required hours and some even volunteer their time to cases for the disabled or the financially disabled. Not many attorneys advertise their pro bono services, so it can be a chore to find pro bono lawyers. You can call local general practice attorneys in your county to ask if they're taking pro bono cases. If these attorneys have not used up their pro bono hours, they may be willing to take your case. There are also many websites dedicated to pro bono lawyers who will freely volunteer their time.

Some law firms have a pro bono coordinator. When contacting a law firm, ask to speak to a pro bono coordinator, or if they have an attorney who is willing to do some pro bono work, if there is no coordinator. Another way to find pro bono lawyers is to contact your state’s bar association.

Pro bono lawyers take cases for clients who genuinely cannot afford to hire one. This often includes people on disability and people who have been laid off and cannot afford to pay customary legal fees.

When a pro bono lawyer takes a case, it is a win-win situation for the client and the attorney. An attorney may have a lot of experience in a certain area of law, but he may want to add another area to his expertise. For example, a family law attorney may want to add criminal law experience to his portfolio. One of the best ways to do this is to do some criminal pro bono work.

BAR IN NEPAL

Since 1953 the lawyers started to practice law at the Nepalese courts. In the span of nearly 4 decades, today the Nepalese Bar has emerged as a strong organization. Until the promulgation of the Bar Council Act in 1992, lawyers were under the supervision and control of the Supreme Court. Presently the Bar is administered by the Nepalese Bar Council headed by the Attorney General of Nepal. The Bar Council of Nepal is a policy making body, which is also responsible for conducting the qualifying tests to enter into the Bar. Besides, the Council has to work for the professional development of lawyers as well as to look into disciplinary matters relating to the Nepalese lawyers.

Nepal Bar Association is the central organization of the Nepalese Bar. Supreme Court Bar Association, Appellate Court Bar Associations and District Court Bar Associations are established under the Nepal Bar Association. Nepal Bar Association is also a policy making body of the Nepalese Bar.

Classification of lawyers

Lawyers in Nepal are classified into three categories:

Senior Advocate: The Supreme Court awards the title of Senior Advocate to any Advocate of reputation with a minimum of 15 years of experience and having significant contribution in the society in the field of legal practice.

Advocate: The Bar Council is empowered to award the title of advocate to any law graduate, or a pleader with 15 years of experience, or a pleader holding a law degree with 7 years of experience, or any retired judge and officer of Nepalese Judicial Service with 5 years of experience and any law teacher with 5 years of experience provided that they qualify in the Bar entry test for the Advocates.

Pleader: The Bar Council is empowered to award the title of Pleader to any person holding intermediate degree in law or who has worked as an agent for a minimum of 5 years and who has qualified in the Bar entry test for the Pleaders.

The Senior Advocates and Advocates may plead and practice in any courts in the country. The pleaders may plead and practice in all the courts other than the Supreme Court. 

power and function of attorney general

Attorney General is the chief legal advisor of Government of Nepal and chief public prosecutor of Nepal. The Interim Constitution of Nepal, 2063 (part 16) describes Attorney General as one of the constitutional bodies. The provisions of the Constitution and other legislative enactments shall govern the appointment, power, function, and extra jurisdictional status of Attorney General of Nepal.

Appointment of Attorney General

Attorney General is the chief legal advisor of Government of Nepal and chief public prosecutor of Nepal. The Interim Constitution of Nepal, 2063 (part 16) describes Attorney General as one of the constitutional bodies. The provisions of the Constitution and other legislative enactments shall govern the appointment, power, function, and extra jurisdictional status of Attorney General of Nepal.

   In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.

The term is used to refer to any person who holds a general power of attorney to represent a principal in all matters. In the common law tradition, anyone who represents the state, especially in criminal prosecutions, is such an attorney. Although a government may designate some official as the permanent attorney general, anyone who comes to represent the state in the same way is referred to as such, even if only for a particular case.

Appointment of Attorney General

According to the constitutional provision, Attorney General is appointed by the President on the recommendation of Prime Minister. No person shall be eligible for the post of Attorney General unless he/she is qualified to be appointed as a judge of the Supreme Court as Article 134 Sub-article (2) of the Constitution describe. As Attorney General is an appointee of President, the appointment seems more political than academic though in practice there are highly academic and experienced persons being appointed in the post of Attorney General. Attorney General is responsible towards Prime Minister for any job he has performed.

Clause (1) and (2) of the Article 134 of the Interim Constitution of Nepal provides about the appointment of the Attorney General. The constitutional provision regarding the Attorney General is as follows:

134. Appointment of Attorney General:

There shall be an Attorney General of Nepal, who shall be appointed by the President, on the recommendation of the Prime Minister.85 The Attorney General shall hold office during the pleasure of the Prime Minister.

No person shall be eligible to be appointed as the Attorney General unless he or she is qualified to be appointed as a Judge of the Supreme Court.

The office of the Attorney General shall be deemed vacant in any of the following circumstances:

(a) if he or she tenders resignation in writing to the President, through the Prime Minister;86

(b) if he or she is relieved of his or her office by the President, on the recommendation of the Prime Minister or

(c) if he or she dies.

The remuneration and other facilities of the Attorney General shall be similar to those of a Judge of the Supreme Court. Other conditions of service of the Attorney General shall be as determined by law.

135. Functions duties and power of Attorney General:

The Attorney General shall be the chief legal advisor to the Government of Nepal. It shall be the duty of the Attorney General to give opinions and advices on constitutional and legal matters to the Government of Nepal and such other authorities as the Government of Nepal may specify.

The Attorney General or officers subordinate to him or her shall represent the government of Nepal in lawsuits wherein the rights, interests or concerns of the Government of Nepal are involved. Save as provided otherwise in this Constitution, the Attorney General shall have the right to make the final decision as to whether to institute any case on behalf of the Government of Nepal in any court or judicial authority.

Subject to Clause (2), in the course of performing his or her duties, the Attorney General shall have the power to do the following acts:

(a) To defend, on behalf of the Government of Nepal, any lawsuit in which the Government of Nepal is a plaintiff or a defendant;

(b) To monitor, or cause to be monitored, whether any interpretation given to a law or any legal principle laid down by the Supreme Court in the course of trying lawsuits has been implemented;

(c) On a complaint alleging that any person held in custody has not been treated humanely subject to this Constitution or such person has not been allowed to meet his or her relative in person or through his or her legal practitioner, or on receipt of information of such matter, to inquire there into and give necessary directive to the concerned authority to prevent such act.

In addition to the functions, duties and powers mentioned in this Article, other functions, duties and powers of the Attorney General shall be as determined by this Constitution and other laws.

In the course of discharging the duties of his or, her office, the Attorney General shall have the right to appear in any Court, office and authority of Nepal.

The Attorney General may delegate his or her functions, duties and powers under this Article to his or her subordinates as to be exercised and complied with subject to the specified conditions.

136. Annual report:

The Attorney General shall, every year, submit to the President88 an annual report on the works which he or she has performed pursuant to this Constitution and other laws; and the President89 shall arrange to submit such report to the Legislature-Parliament through the Prime Minister.

The annual report to be submitted pursuant to Clause (1) shall set out, inter alia, the number of advices and opinions on constitutional and legal matters rendered by him or her throughout the year, details of instituted governmental cases, details of defense made in lawsuits in which the Government of Nepal is a plaintiff or defendant, details relating to crimes and details of reforms to be made in the future in relation to cases to be instituted as governmental cases.

137. Right to appear in Legislature-Parliament:

The Attorney General shall have the right to appear and express his or her opinion on any legal question in any meeting of the Legislature-Parliament, the Constituent Assembly or any of their committees.

Provided that, he or she shall not have the right to vote

Appointment of Public Prosecutors/Government Attorneys

There are total 242 Public Prosecutors/Government Attorneys in different status working throughout the country. Under the broad Judicial Service Category of Employees, a sub-group of Government Attorneys has been classified under Judicial Service. Fresh law graduates can sit for the competitive examination conducted by Public Service Commission every year. On the recommendation of the Public Service Commission, the Government appoints the successful candidates for the post of Assistant District Government Attorneys (Gazated Third-Class). The post of Public Prosecutor/Government Attorney is a cadre-based job in the Judicial Service. The cadre is promoted on the basis of file promotion after a certain time he/she spent in the same post. There are four categories of cadre based Public Prosecutor/Government Attorney under Attorney General. As:

Deputy Attorney General, (Secretary Level, Special Class)

Joint Government Attorneys, (Gazated First-Class)

Deputy Government Attorneys/District Government Attorneys, (Gazated Second-Class)

Assistant District Government Attorneys, (Gazated Third-Class)

After their appointment, they come under the purview of the Judicial Service Commission (JSC) for their posting, transfer and promotion within the organization. JSC is a high level constitutional body headed by Chief Justice, Chairman of the Public Service Commission and the Attorney General as its member. Thus except the Attorney General all other Public Prosecutors/Government Attorneys including the four Deputy Attorneys General are career civil servants. During their service career, they require to undergo Pre-service and In-service training.

Article 134 sub-article (2) of the Interium Constitution of Nepal 2063 describes about the procedure for the appointment of Attorney General of Nepal.

Article 134 sub-article (2) of the Interium Constitution of Nepal: Part 10 of the Interium Constitution of Nepal describes about Judiciary. Article 103 of the same part of the Constitution spells about the procedure for appointment, qualification and conditions for service of the Chief Justice and other Justice of the Supreme Court. The person who has worked at least three years, as a Supreme Court Justice and still working is eligible to be appointed as Chief Justice of Nepal. Similarly the person who has worked at least seven years as Appellate Court Justice or worked in a similar status in the Judicial Service or worked at least fifteen years as a graduate advocate or Senior Advocate or has twelve years work experience in the field of Justice and law as a reputed jurist is eligible for Supreme Court Justice.

Article 114 of the Interium Constitution of Nepal has made provisions for Judicial Service Commission for the purpose of appointment, transfer, promotion and any department actions to the employee of Judicial Service.

JUDICIAL SERVICE COMISSION

The Judicial Service Commission established under Article 114 of the Constitution is a body basically responsible to recommend to the Government of Nepal for the appointment, transfer, promotion, departmental action and dismissal to all level of officers of the Nepalese Judicial Service. The Judicial Service Commission is composed of the Chief Justice of Nepal as ex-officio Chairman, the Minister of Justice , the seniormost judge of the Supreme Court, the Chairman of the Public Service Commission and the Attorney General of Nepal as ex-officio members. The Secretary of the Judicial Council is the ex-officio Secretary of the Judicial Service Commission. The Judicial Council Secretariat which is also the Secretariat of Judicial Service Commission is responsible for assisting the Commission to maintain the performance records of all the officers of Judicial Service as well as for implementing the decisions of the Commission. 

What are the functions of law in a society?

Maintains social control

Protects public order

To resolve disputes

Protects certainty of systems

Facilitates orderly change

Brings out justice in society

Outlines what the government can do and what it can not do

The law is the body of rules imposed by a State upon its members which is designed to regulate human conduct within that State. The courts interpret these rules of conduct, decide whether they have been broken and pass sentence or make an award of compensation. A certain standard of behaviour is thereby maintained amongst the members of the State in the interest of the common good.

FUNCTIONS OF LAW

To foster, promote morality

To promote health & safety

Maintains social control

Protects public order

To resolve disputes

Protects certainty of systems

Facilitates orderly change

Brings out justice in society

Outlines what the government can do and what it can not do

The law is the body of rules imposed by a State upon its members which is designed to regulate human conduct within that State. The courts interpret these rules of conduct, decide whether they have been broken and pass sentence or make an award of compensation. A certain standard of behaviour is thereby maintained amongst the members of the State in the interest of the common good.

Criminal prosecution

Criminal Prosecution System of Nepal: A Brief View

Fundamental Law:

The Interim Constitution of Nepal, 2063 is the fundamental law of Nepal and all laws inconsistent with it shall, to the extent of such inconsistency be void (Article-1).

Executive Power:

The Executive power of Nepal vest in the Council of Ministers.

Legislature-Parliament:

The legislature is known as Legislature-Parliament.

Judiciary:

Powers relating to justice in Nepal shall be exercised by Courts and other Judicial Institutions in accordance with the provisions of this constitution, the laws and the recognized principles of Justice. Courts in Nepal consist of the following three tires:

Supreme Court

Appeal Court

District Court.

In addition to those courts, special Courts or tribunals may also be established for the purpose of hearing of special classes of cases.

Extraordinary jurisdiction of the Supreme Court:

Any Nepali Citizen may file a petition in the Supreme Court to have declared any law or any part thereof void on the ground of inconsistency with the constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights or on any other ground. The Supreme Court may declare that law as void either abinito or from the date of its decision if the, it was found inconsistent as claimed.

For the enforcement of the fundamental rights as conferred by the Constitution, or for any other legal rights for which no alternative remedy exists or the same is inadequate or ineffective, the Supreme Court may, in exercise of its extraordinary power, issue necessary and appropriate orders in the nature of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo-Warranto. For the settlement of any constitutional or legal question involved in any dispute of public interest or concern also, the Supreme Court may issue necessary and appropriate orders to enforce such rights or settle the issue. The original and appellate jurisdictions of the Supreme Court are defined by ordinary legislation. It may also review its own judgments or final orders subject to the condition and in the circumstances as prescribed by law.

Right to Justice as Fundamental Right:

No person shall be punished for an act, which was not punishable by law when the act was committed, nor shall any person be subjected to a punishment greater then that prescribed by the law in force at the time of the commission of the offence.

No person shall be prosecuted or punished for the same offence in a court of law more than once.

No person accused of any offence shall be compelled to be witness against himself.

No person who is detained during investigation or for trial or for any other reason shall be subjected to physical or mental torture, nor shall be given any cruel, inhuman or degrading treatment. Any person so treated shall be compensated in a manner as determined by law (Compensation for Torture Act).

No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, or shall be denied the right to consult and be defended by a legal practitioner of his choice.

Every person who is arrested and detained in custody shall be produced before a judicial authority within a period of twenty four hours after such arrest excluding the time necessary for the journey from the place of arrest to such authority, and no such person shall be detained in custody beyond the said period except on the order of such authority.

Every person has right to fair hearing from compitent court.

Incapable person shall have right to free legal service as provided by law.

Right Against Preventive Detention:

No person shall be held under preventive detention unless there is a sufficient ground of existence of an immediate threat to the sovereignty, integrity or law and order situation of Nepal. Any person held under preventive detention shall, if his detention was contrary to law or in bad faith, have the right to be compensated in a manner as prescribed by law.

Criminal Justice Process:

The working criminal justice process may be grouped as under:

The Pre-trial Process

The Trial Process

The Post-trial Process.

The Public Prosecution Act, 1993 and the Public Prosecution Rules 1998 are the basic governing laws for the investigation and prosecution of crimes in Nepal. Additionally, the Muluki Ain (General Code of Procedure 1962) also has prescribed certain procedures relating to the conduct of investigation and collection of evidence. 

The Police as an Investigation Agency:

The Organization of Police is established under the authority of the Police Act, 1956 and the Police Rules 1993. The Police Organization functions under the general supervision and control of the Ministry of Home Affairs. However, by virtue of the said law it is being developed and evolved as an independent professional force. As of now the following type of police force is in operation:

Public Police Force

Armed Police Force

Guard Police Force

Riot Police Force, and

Traffic Police Force.

Within the Public Police Force, the Department of Crime Investigation, headed by a Deputy Inspector General of Police has been entrusted with the supervision, coordination and resource mobilization for the effective functioning of the Crime Investigation Department. This Department works through Regional (5) Zonal (40) and District (75) Police Offices throughout the country. The District Police Offices are the basic law enforcement agency of the force at the District level. As such, they are responsible for the investigation of crimes within their territorial jurisdiction. Because of lack of trained manpower, limited financial and physical resources, all of the 75 District Police Offices do not have a separate investigation section yet.

The Pre-trial Process:

Usually the crime investigation begins with the filling of the First Information Report (FIR) by the victims or near relatives or detection of the crime. Once the Police accept the FIR the search for the arrest of suspect and collection of evidences naturally follow. In the meanwhile, as per the requirement of the Public Prosecution Act, 1993 a preliminary report is filed to the competent District Government Attorney (DGA) who in turn, at his discretion may issue binding instruction to the Investigation Police Officer. The statement of the suspect who is in Police custody by the order of the Court is to be recorded by the Investigating Police Officer in DGA's presence in latter's Office. The rationale behind this seems to be to protect the suspect from mental/physical torture of the Police, if any. On completion of the investigation the Investigating Police Officer prepares a Case-file and submits the same to the District Government Attorney with his opinion as to prosecute or dropping the case. The District Government Attorney, on examination of the case-file, at his discretion, may take any of the following decision:

Refer back the file to the Investigating Officer for further investigation and release the suspect if under arrest,

Decide to drop the case altogether on account of lack of evidences and discharge the suspect,

Decide to charge all or some and discharge other of the suspects.

Where the case-file has been referred back for further investigation the investigation process is supposed to continue and in due course, the same has to be submitted to the District Government Attorney for his decision. A decision for partial prosecution the decision of the DGA becomes final. No further investigation and subsequent prosecution against the discharged suspect is possible. However, where the DGA has decided to drop the case altogether and consequently the suspect is discharged, this decision of DGA has to be referred to the Appellate Government Attorney (AGA) for confirmation of the decision. AGA may either reverse the DGA's decision and order back for prosecution or confirm the original decision. In case the AGA agrees with DGA's decision, he has to forward the Case-file to AG office for the final decision of the Attorney General. In exercise of the power conferred by the Article 135 (2) of the constitution, the Attorney General may confirm or reverse decision made by his subordinates. If AG decides to reverse the decision of his subordinates opting for prosecution then the case-file goes back to DGA who then frame the charge and file charge- sheet before the District Court for trial. Once a charge- sheet is filed in the Court for initiating trial the DGA has to act as an Attorney for the state. However, so long as he has not decided to prosecute a case, his role is limited to that of an impartial Committing Authority or the Prosecutor.

The Trial Process:

The Trial Process begins with the filing of a Charge sheet before the competent District Court for trial. On the day of the filing of the charge sheet itself, the accused if under arrest, must be produced before the presiding judge for recording of the statement. The accused is at liberty to either admit or deny the Charge made against him by the Prosecution. At this stage, the accused person has right to engage a lawyer of his choice. Immediately after the recording of the statement of the accused, the Presiding Judge is required to pass an order for granting or rejecting the bail. If the bail is granted without demand for pecuniary security the accused is set free on personal bond. In case the bail is rejected or a large sum of money as security has been demanded and which the accused is not in a position to deposit the accused is sent to judicial custody as an under-trial prisoner. However, the accused has right to move to the Appeal Court for setting aside the original order. Meanwhile, the processes of production and examination of witnesses and adducing of any other evidences as listed by both the prosecution and defense side would follow. So far, no system of separate judge or Bench for hearing the Criminal or Civil Cases has been introduced in Nepal. This is true of all tiers of Courts.

The Post-trial Process:

Once the examination of witness and collection of evidence by trial Court is complete, the case becomes mature for final decision. The case of an under-trial prisoner is given priority for disposal. Usually hearing both the sides, the trial judge gives the verdict either convicting or acquitting the accused immediately. If acquitted, the accused been ordered to be set free immediately. But if the judgment is in favor of the prosecution and the accused is in custody, because of conviction, he has to remain under imprisonment. His custody will continue. However, the right to appeal is available to the convict. He also may approach the Appeal Court for setting free him on bail pending his appeal. On acquittal of the accused, the prosecution has right to file appeal against the judgment of the Trial Court.

Advantage/ Disadvantages of involving Prosecutors in Investigation:

From the very beginning, the Prosecutor is in a position to know the progress of the investigation work being conducted by the police. He is in a position to instruct and guide the police as to the collection of evidences etc. As the recording of statement of the accused the Investigating Police Officer is done in the Prosecutor's Office, he has good opportunity to assess the statement of the accused directly, which would be of help for him at later stage of decision-making.

In our experience, because of lack of proper understanding and appreciation of each other's role, both the Investigating Police Officers and Prosecuting Attorneys do not like to be interfered by the other. This has resulted sometimes in weak investigation and poor prosecution.

power and function

There are two categories of power and function Attorney General has to perform that are following as:

1. Power and function established by the Constitution of Nepal

Attorney General is the Chief Legal Advisor of the Government of Nepal, his duty is to give opinions and advice on constitutional and legal matters to Government of Nepal and such other authorities as the Government may specify.

As a Chief Public Prosecutor, Attorney General has right to make the final decision as to whether or not to initiate proceedings in any case on behalf of the government in any court or judicial authority.

The Attorney General should represent and defend the Government and the State in any suits or cases before Supreme Court wherein the rights, interests or concerns of the State or the Government are involved.

In the course of discharging his official duties, the Attorney General shall have the right to appear in any court, office or authority of Nepal.

He may delegate his functions, duties and power as conferred by the constitution to subordinates, to be exercised as prescribed by the law.

Each year the Attorney General submits an Annual Report to Government of Nepal on the works performed by him in accordance with the constitution and other laws, including a statement about crimes committed in Nepal. The Government shall cause the Report to be laid before the Parliament.

The Attorney General has the right to appear and express his opinion on any legal question in either House, any of their committees or the joint session of the Parliament.

Rt. Hon. Attorney general of Nepal is one of the members of National Civil Aviation Security Committee headed by Hon. Ministry of Tourism under the Civil Aviation Security (Management) Rules, 2046. The Committee has been constituted for the purpose of making Civil Aviations total secured and safe.

2. Power and function established by some legislative enactments

Member of the Judicial Service Commission.

President of Nepal Bar Council.

Member of the Central Legal Aid committee.

Member of the Co-ordination committee of Judicial Council.

Chairman of the Co-ordination committee under Public Prosecutions Act 1993.

organizational Structure

Under the Supreme Court, there are 16 Appellate Courts and 75 District Courts as general courts of Nepal. In order to tune with the hierarchy, structure and jurisdiction of the Courts the Office of The Attorney General also has been structured accordingly. At present there are 16 Appellate Government Attorneys Office, one Special Court Government Attorney Office and 75 District Government Attorneys Office under the Office of the Attorney General. The Public Prosecutors/Government Attorneys subordinate to the Attorney General are working for him in different level offices throughout the country. The power and function of the Attorney General as conferred by the Constitution have been delegated to these subordinates under the terms and conditions as prescribed by the Public Prosecutions Act 1993.

Lawyers Professional Ethics to State and Public

Ethics are written rules by which all lawyers should live by. The sources for ethical rules for criminal defense lawyers, prosecutors and judges come from many sources. In a common law system these ethical rules may come about through case law, statute, or through promulgation of rules of conduct by the controlling bar association. Failure to uphold ethical rules may result in disbarment, suspension, censure, or some other disciplinary measure. Ethics should be differentiated from standards. A lawyer must abide by ethical rules. Standards are, on the other hand, aspirational.

Professional ethics may be defined as a code of conduct written or unwritten for regulating the behaviour of a practising lawyer towards himself, his client, his adversary in law and towards the court. Thus, ethics of legal profession means the body of rules and practise which determine the professional conduct of the members of a bar. When a person becomes an advocate his relation with men in general is governed by the general rules of law but his conduct as advocate is governed by the special rules of professional ethics of the Bar. The main object of the ethics of the legal profession is to maintain the dignity of the legal profession and the friendly relation between the Bench and the Bar.

Professional ethics are a set of norms or codes of conduct, set by people in a specific profession.  A code of ethics is developed for each profession. Suppose you write articles in a newspaper. Professional ethics require that you verify facts before you write that article, isn’t it? Simply put, professional ethics for lawyers in Nepal  lay down a set of guidelines, which defines their conduct in the profession that is highly competitive and dynamic. Nepalese law requires lawyers to observe professional ethics to uphold the dignity of the profession.

Conclusion:

To conclude our whole discussion on the ethics of legal profession or the duties of an advocate, one can fairly summarize that basically the duties which an advocate has to follow is of moral character, what he owes to his clients or opponent or colleagues or towards court is not only determined by the rules framed by the Bar council of Nepa   in this behalf but all the more, it also depends on one etiquette manners. In what way and in what manner an advocate has to conduct himself is determined by his loyalty towards his profession. The profession of law is honourable and its members are expected to act in an honest and upright manner. And any deviation from these elementary principles is liable to be dealt with severely. An advocate practising a law is under many fold obligations like certain obligation towards court, client, witnesses, opponent, colleagues and general duties as a member legal profession. When advocate do not follow any of such obligation imposed on him by law, then he can be guilty of professional misconduct. Misconduct can be defined as dereliction of or dereliction from duty. An advocate is answerable for dereliction of duty. In order to avoid misconduct every legal practitioner should understand his duties. When lawyer is guilty of any professional misconduct, then only any action can be taken.  The fundamental aim of legal ethics is to maintain the honour and dignity of the law profession, to secure a spirit of friendly co-operation, to establish honourable and fair dealings of the counsel with his client, opponent and witnesses, to establish the spirit of brotherhood in the Bar itself; and to secure that lawyers discharge their responsibilities to the community generally. Legal profession is necessarily the keystone of the arch of government. Legal profession is not a business but a profession. It has been created by the state for the public good. Consequently, the essence of profession lies in two things:

Organisation of its members for the performance of their function.

Maintenance of certain standards, intellectual and ethical, for the dignity of the profession.

 

Legal education , training and capacity building of lawyers

Legal education as a professional education requires appropriate and adequate blending of doctrinal legal knowledge and lawyering skills orientation. It requires the capability of using the knowledge and skills in real life situations and live cases. Legal professionals deeply influence the development of the national legal system. For effective legal manpower preparation, modern legal education has developed many methods and techniques of instruction, curriculum and course duration. Many countries around the world have considerably changed the methods by incorporating problem solving techniques and encouraging students’ active participation in the learning process.

The basic objective of Faculty of Law is to produce high and medium level legal manpower to fulfill the demand of the legal professionals for the nation. The Faculty of Law offers three categories of academic programs.

In the abstract the writer of this article intends to present a brief observation on and analysis of prevailing legal education and relevance of its contributions for developing Nepalese legal system and other sectors. It is worth noting that qualitative legal education received by the people in the country plays crucial role for the promotion of legal system and development of society. Legal Education can play significant role in establishing just and equitable society. Inflexibility of thought and lack of legal research hinder the process of strengthening legal development and development of society

"Law is a system of rules and guidelines, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and obligations related to the transfer and title of personal and real property. Trust law applies to assets held for investment and financial security, while tort law allows claims for compensation if a person's rights or property are harmed. If the harm is criminalised in a statute, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies, while international law governs affairs between sovereign states in activities ranging from trade to environmental regulation or military action."

Functions and roles of law

When disputes arise between members of society or between businesses, it's through the courts, using the law, that will help to resolve the dispute between the parties. There are different types of laws such as the constitution law and the common law. In many cases judges will use previous cases to help solve a current case. This process is called precedents, which means to follow the decision of other judges in similar cases to solve their case. Within the law there are three types of common classifications of law, (1) criminal law and civil law, (2) substantive law and procedural law, and (3) public law and private law. These classification of laws help the courts system to know which law will be applied to a case based on the category the case falls into.

What is the constitution law? The constitution law has two functions. The first function or role of the constitution is to set up a structure of government. The structure is set up for the political units that the government controls, Branches and subdivisions are created in the government. These subdivision and branches also receive instructions of what power they have as well as what power they do not have. This is what we know as separation of power to great a balance within the government legal system.   The other function of the constitution law is to make sure that other units of government do not take certain actions or even pass certain laws that may restrict certain rights of the individual. One example would be the passing of the bill of rights

The second type of law is known as the judge made law, which is the common law. The common law is known as the judge made law because judge make the law and their decision on a cases is made based on those laws. This type of law is only used on cases that are not governed by statues or other type of law. Even though the state courts and the federal courts may become involved in using the common law it's generally used by the state...

NATURE AND FUNCTIONS OF LAW

(1) Nature of Law

(a) normative: obligatory on human conduct

(b) institutionalised

(c) coercive

(d) general application

(2) Functions of Law

(a) Law as preservation of order

-public order law, criminal law

(b) Law as platform for human co-operation

-law of contract

(c) Law as medium of dispute resolution

-law of tort

(d) Law as tool of domination

counter-revolutionary offences

(e) Law as mechanism for social engineering

-land registration

(f) Law as bulwark of morality

-decriminalizing homosexual acts between consenting adults

(g) Law as regulation of governmental powers

-constitutional law, administrative law

(h) Law as protection of individual freedom

-bill of rights, anti-discrimination legislation

(i) Law as attainment of justice

-rules of natural justice, bill of rights, social security law

(3) Limits of Law

(a) What law could not achieve

-e.g. love

(b) What law should not interfere with

-private life

(c) Law may not be the best option

Role Of Law

The Role and Functions of Law in Business and Society

Introduction

Law plays a significant role in the successful operation of business and society. Laws regulate social behavior, which leads to a society that runs efficiently. Laws also supply ethical standards and expectations, while providing rules of conduct, measures to enforce those rules, and a means for settling disputes. Other functions of law include: peacekeeping; checking government power and promoting personal freedom; facilitating planning and the realization of reasonable expectations; promoting economic growth through free competition; promoting social justice; and protecting the environment (Mallor, Barnes, Bowers, and Langvardt). It is important to note that without laws to govern the actions of people and businesses, society would not be able to function effectively, and commerce would likely collapse.

Although the general functions of law appear to be rather simple, the United States legal system is actually very complex. Laws are broken down into several different types. These include constitutions, statutes, common law, administrative regulations and decisions, treaties, ordinances, and executive orders.

Constitutions

A constitution is the overriding law, because it establishes the fundamental principles of a government at either the state or federal level. This includes creating the branches of the government, bestowing and refusing certain powers to each branch, and preventing other governmental units from passing certain laws, specifically those which limit individual rights.

Statutes and Common Law

A statute is a law enacted by elected representatives of the legislative branch of government. Administrative regulations are similar to statutes, but are enacted by administrative agencies instead of elected representatives. Common law, on the other hand, is based on prior court decisions. These laws are applied when cases are not governed by other types of law.

Treaties,...