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Concept of Criminalization, Penalization
and Principle of Legality in Nepali Judicial
Discourse
Prof. Dr. Rajit Bhakta Pradhananga ⊗ Balram Prasad Raut ⊕⊕
Abstract
Criminalization is one of the most significant issues in criminal law. Actus reus, mens rea, defenses; these issues receive massive academic attention, as well they should, for they are all important and necessary constructs to making criminal law both just and logical. The authors discuss all aspect of criminal law. They cover concepts of criminalization and penalization and legality principles with appropriate case law examples from English law and Nepali practices. Further, they critically review case laws with principles and laws.
1. Introduction
Criminal law is a matter of policy of any State and it has the authority to make the norms of criminal law. As a sovereign body, the State has powers to make the criminal law. Sometimes the executive body of the government or the judiciary starts to make and create the norms in the criminal law regime through regulation and in the name of interpretation of existing criminal law. Both the executive and judiciary have no authority to create and make the norms of criminal law. Creation and making of norms of criminal law is purely the prerogative power of the legislature-parliament. Modern criminal jurisprudence has developed a basic and fundamental principle which says that only the parliament as the body of people's representative has absolute power to create and make the norms of criminal law. It is because there should be state policy to criminalize, decriminalize and recriminalize the human conduct with detail information which should be based on the scientific study and research. Before discussing criminalization, decriminalization or re-criminalization, the civil, political, social economic and cultural conditions of the State should be studied and afterward the criminal law should be enacted. In Nepal, there are many examples, the norms of criminal law have been made by the executive body of the government while making the regulations but the judiciary in the name of giving interpretation has been creating new crimes and criminalizing some behaviors which have not been criminalized by the existing criminal law. ⊗ (^) LL.M., Ph.D. (Criminal Law), Nepal Law Campus, TU. Member of the NJA Governing Council, Nepal. ⊕ ⊕ (^) B.A., LL.B. and LL.M. (Criminal Law), Lecturer, Nepal Law Campus, Kathmandu.
91 It is not only the problem of executive body or the judiciary^1 sometimes due to lack of clear understanding of criminal law, the parliament delegates or authorizes the executive body of the government to make the substantive part of the criminal law through delegated legislation, which is against the basic principles of the criminal law. In this article, we have tried to conceptualize the criminalization of human conduct, cycling process of criminalization, concept of penalization, purpose and limits of criminal legislation and principle of legality in judicial system.
2. Concept of Criminalization and Penalization
2.1. Process of criminalization and its component phases
The criminalization means to declare certain human conducts as offence and to make punishable such act. Such act may be immoral or not, but harms the people, prevents the people for the social development from all aspects. The act may not be against the morality of the people, but it may be evil itself and the society may not agree with it. It is an act which is the deviation from the normal behavior and people take it as the bar of the society for their development. It is not a simple job for the State to criminalize the human conduct because the act which is acceptable by one person may not be accepted by another person. The act which is taken as normal behavior in one society or in one religious community may not be taken so easily in another community. The criminalization of human conduct can be done only by the State, or by the sovereign authority but before criminalization of any human conduct, the State should take in to consideration the fact that only criminalization of human conduct is not sufficient, it must be applied practically, otherwise it may bring reverse impact upon the society or, it may not be applicable and people repeatedly may violate it. At the same time it is better not to criminalize the trifling act than to criminalize it. The process of criminalization has to pass three phases. First, people of the society show their revulsion towards the conduct to which they feel that such conduct will disintegrate the society and society may lose its existence. They show their response against it and start to create opinion among them to criminalize it; otherwise it will be harmful for them. In this way, they identify the conduct to which they want to criminalize and make a decision to criminalize. After the identification of the conduct to be criminalized and making decision to criminalize, the second phase of the process of criminalization of human conduct starts. This process is to draft a bill and submit it in the Legislature-Parliament. In the third phase, the parliament passes the Bill and criminalizes the human conduct as a crime. 1 Balram Prasad Raut, Criminalization of Human Conduct, Nepal Law Review, 121-22. (Kathmandu Nepal,Law 2010). Concept of Criminalization, Penalization...
93 Sanction (1969)^4 , has expounded the criteria of criminalization. Drawing the work of Packer, it is common to assert that there are two conditions that need to be satisfied before criminalization of human conduct is satisfied. (i) The human conduct must be wrongful. (ii) It must be necessary to employ criminal law to condemn or prevent such conduct. (i) Wrongful conduct: There are some schools which have forwarded their opinions about the wrongful conduct. Some important schools have been explained in the following paragraphs for detail discussion. Schools of thought regarding wrongful conduct The conduct should not be prohibited unless it is considered as wrongful. There is, however, no agreement as to the criteria for establishing wrongfulness.^5 First school emphasized that conduct is wrongful if it is immoral (legal moralism). Second school of thought emphasized that conduct is only wrongful if it causes harm or serious offence to others (the harm principle or liberalism). Third school of thought regarding the wrongful conduct are those who assert that conduct is wrongful if it causes harm to others or to the actor (paternalism). Each of these competing views has been described in the following paragraphs: A. Legal Moralism This school of thought gives priority to the moralism and emphasizes that society should always maintain its morality. The term morality is an abstract term and it is difficult to describe in a very acceptable way. For our understanding the term “moralism” has been described by explaining three words, such as homo-sexuality, that is, sado-masochism, incest and consensual sexual activities, i.e. prostitution. The words sado-masochism and incest may create the same hatred and disgust towards the actors whereas consensual sexual activities are to some extent different from that of other two conducts. There is an agreement that murder, rape, theft etc. 4 C.M.V. Clarkson and H.M. Keating, Criminal Law and Test Materials, 4 (London: Sweet and Maxwell, 1998). 5 Ibid. Paternalism Paternalistic school Harm School or Liberalism Legal Moralism Moralist school Concept of Criminalization, Penalization...
94 NJA Law Journal - 2013 are immoral and all these conducts should come within the ambit of criminal law and one can say that criminal law is for all these immoral conduct. But first to bring the immoral conduct within the ambit of criminal, it is necessary to be clear about morality. There are some views propounded by different jurists and they are very important to take into account while declaring the conduct as immoral. The scholars are Devlin, Clarkson, William Wilson, Herbert L. Packer, Jennifer Temkin, etc.; all these scholars agree with the statement that if any act harms the society to run in a smooth way and creates hatred towards it, such conduct is called immoral. If the like-minded persons treat likely or as immoral it is immoral. It is enough to test the immoral conduct that every right minded person is presumed to consider immoral. The forerunner of this school is Sir Patrick Devlin. In his Morals and Criminal Law , he has framed three interrogatories to describe the immoral conduct. Those are^6 : a) Does society has the right to pass judgment at all on the matters of morals? Ought there, in other words, to be a public morality, or are morals always a matter for private judgment? b) If society has the right to pass judgment, has it also the right to use the weapon of the law to enforce it? c) If so, ought it to use what weapon in all cases or only in some: and if only in some on what principles should it distinguish? Devlin has answered affirmatively of the above two questions and expressed the views that if the act is immoral State has right to pass judgment at all on the matters of morals. At the same time, he said that morality can not always be the public- matters, i.e. it is not always occurred in public, but it is also conducted in private. Private immoral conduct may also cause harms to the society. He has immoralised the conduct like homosexual, even practiced in private. He also said that State is entitled to protect society from its disintegration. It is pervasive for the people. It is regular routine of the State to criminalize the immorality as it does for the national security and for the revolutionary act which is against the government to over- throw it. He has emphasized also on the old familiar question of striking balance between rights and interest of the society and those of the individual. There must be toleration of the maximum individual freedom that is consistent with the integrity of society. To quote the lines of Devlin "any immorality is capable of affecting society injuriously and in effect to a greater or lesser extent it usually does: this is what gives law ' locus standi' .7^ While he is answering the third question, he has maintained some individual autonomy and his privacy. He further goes on saying that the law should be for society as well as for individual. 6 Supra note no. 2 7 Supra note no. 2
96 NJA Law Journal - 2013 in the society, and it shall be generally not all proper for the court to interfere with the wisdom and reasoning of the legislature regarding such a matter. The right to equality means the equal application of law and the equal protection of law among the equals. It does not mean the equal application of law and the equal protection of law among the unequal." Prostitution is no longer debatable in modern world and all might agree with the view if a woman and man have a sexual intercourse in private will not harm the public. But it will not be acceptable if it is publicly done at station or in an inn. Even the Wolfenden Committee on Homosexual and Prostitution 1957 recommended consenting adults in private should no longer be a criminal offence. In other word, whilst immorality may be necessary condition for the imposition of the criminal law, it ought not to be a sufficient. A line has to be drawn between that which society will allow or turn a blind eye or condemn informally and that which it will condemn by means of the criminal law. One yardstick offered by Devlin is the depth of disgust. Another offered by Wilson is that of autonomy being trumped where the activity is against the 'public interest'. B. The Harm and Offence Principle: Liberalism The harm and offense principle relies upon the 'principle of individual autonomy.'^10 A man born free and he is a rationale being. He poses capacity to choose what to do and what not to. He deserves for what he does. He should not be liable for which he does not deserve. He chooses to do anything in pursuance of his motives and desires. He knows the result and desires to achieve that result. Every act of a man and his desire must be respected. It is characterized by their ability to control their own destiny. Human action is conceived as the product of free, rational choices on the part of the individual. This principle was developed against the legal moralism. The supporters of this principle are JS Mill, HLA Hart, Hyman Gross, and Joel Feinberg and so on. Most of these jurists developed their ideas based on the theory of Lord Devlin and all have criticized him directly or indirectly. All have similar view in the sense that a man should not be punished until he harms to others. To say only harming to others is not sufficient. The way and methods of harming to others differ with the occurrence of the crime. The Wolfenden Committee on Homosexual and Prostitution (1957)^11 has also played a vital role to liberalize the human conducts and liberty of the individuals. All the supporters of this principle have focused on the liberty of the individual. This school is called as liberalists’ school and development of this philosophy is known as liberalism school or harm school. 10 It has been elaborated in detail under sub-topic 6 of this article. 11 William Wilson, Criminal Law: Doctrine and Theory, 30 (London: Longman 1998).
97 JS Mill, in his great work on Liberty has quoted that "The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He can not rightfully be compelled to do or forbear... Because in the opinion of others to do so would be wise or even right."^12 A century later the Wolfenden Committee (1957) expressed a more cautious view that "there must remain a realm of private morality which is in brief and crude terms, not law's business"^13. It is very easy to say that 'do your own thing as long as you do not hurt else'. This philosophy is very attractive but it will not be helpful unless we have clear definition of 'harm to others'. It is ambiguous because the drug users do not harm directly to the family or community members but it creates drug-cultures and the family of the drug users and the society should also provide support that drug user. Such type of secondary harm is liabable for criminal liability or not, is also a matter of our concern. So, it is necessary to expand the definition of harms. Harm can be divided in two categories i.e.primary and secondary harms. Primary harm means harm to others and secondary harm means harm to himself. For this, we can observe Hyman Gross. It is possible to overstate the centrality of individual autonomy in accounting for the range of criminal offences. Modern formulation of harm theory makes this explicit. Gross, for example, defines harm in a notably broad way, including the following harm within the potential purview of the criminal sanction.
- Violation of interest in retaining or maintaining what one is entitled to have;
- Offences to sensibility;
- Harms consisting in some impairment of a collective welfare; and
- Harms consisting in violations of some government interest. Feinberg, in his work the Moral Limits of the Criminal Law,^14 has defined 'harm to others' and 'serious offense to others.' While defining these terms, he has also mentioned some criteria to find out criminality of the conduct. He has defined harm as a '...thwarting, setting back, or defeating of an interest' that is a consequence of a wrongful act or omission by another. Risk of harm to such interests can also justify criminalization: the more serious the threatened harm, the less justifiable it needs be. Feinberg also argues that one is justified in criminalizing conduct if it would probably be an effective way of preventing serious offense. Feinberg has provided some criteria for the legislators to determine harm to other: 12 J. S. Mill, Liberty, 31 (Oxford, 2010). 13 CMV Clarkson, Understanding of Criminal Law, 201 (London: Sweet and Maxwell, 1998). 14 CMV Clarkson and HM Keating, Criminal Law and Test Materials, 17-18, (London: Sweet and Maxwell, 1998). Concept of Criminalization, Penalization...
99 of various neighborhoods, and consider establishing licensed zones in areas where the conduct in question is known to be already prevalent, so that people inclined to be offended are not likely to stumble on it to their surprise... C. Legal Paternalism: Legal paternalism is a new movement in the history of modern criminal law. It protects both to the person who suffers injury by his own conduct or by giving the consent to another person to do so. A drug user does not harm another person but himself; even paternalists convey or advocate that both the users and sellers must be criminalized. A minor child also should be protected by the State in the sense that they cannot save his/her rights as adults and they are abused by adults frequently. So the view of paternalists is that minor, unable must be protected and their rights can only be saved, if the conduct, which is against their interest, is criminalized. There are, however, problems with a paternalistic approach. This approach was criticized by saying that paternalist argues from a philosophical slippery slope and is at constant risk of taking tumble. Critics say that this approach tries to make a man super-fit, it wants to make people clean-living 'Spartans' whether we like it or not. At the same time the utility of this approach can not be overlooked. (ii) Is it necessary to employ the criminal law? It is the second criteria to be focused before criminalization of human conduct. This criterion wants to convey that only to show that the conduct is wrong is not sufficient. There must be the need to employ the criminal law to condemn or prevent such conduct. There are several mechanisms in a society to control the deviated conduct. Criminal law is last and ultimate instrument to criminalize the human conduct. If other means of social control is useless or helpless to achieve a particular end, only then we should apply criminal law. It is not a panacea in itself. Herbert L. Packer, in his creation The Limits of the Criminal Sanction, has described several causes to make criminal law as last resort to prevent the wrongful conduct. Gravity and remoteness of harm also necessitate the criminal law to prevent offense. 'Harm to other' does not, of course, mean identifiable to the offender. There are victimless crimes which also harm to the society. It may create some difficulties to trace offender and the victim. It does not mean that we should not criminalize it. Bribery and espionage are difficult to detect and to convict the offender, but these are the matter of concern to criminal law. Another factor which brings criminal law in front of the goals of punishment. There should be utilization concent for the prevention of conduct. Hierarchy of remoteness of Conduct should be prescribed by any criminal code that the law seeks to prevent. Sale of liquor may cause so many offenses, such as driver may cause accident being Concept of Criminalization, Penalization...
100 NJA Law Journal - 2013 an intoxicated, he may cause death by accident. Similarly, to possess a tool for burglary may cause so many offenses, such as, counter-attack, killing and so on. The criminal law should not be promulgated for trivial uses. Before enforcement of criminal law, legislator should think about detection, conviction, arrest, apprehending to the violators and so on. He said that tariff-crime should not be created and declared as crime because it may create counter result. The demand for illegalized activity may be so idealistic that rather than reducing the incidence of the activity, it merely derives underground and force the price up. Clarkson, the great scholar in the field of criminal law, illustrates for the second criteria, can be described in following points: (i) Gain and benefits should not be overlooked. (ii) Costs can be assessed both in economic and non-economic terms. (iii) “Punishment is in itself evil”, said Bentham. This statement is also very useful and remarkable for the agencies of government. (iv) Another cost is the potential 'criminogenic effect' of the criminal law. It means crime can breed crime. (v) Outlawing certain activities, for example drug-trafficking and peddling pornography, leads to the creation of black-market. So such types of act can be regularized by regulation and it should not be outlawed. Abortion is one such example, where behind the curtain so many illegal activities were committed. [But after legalization the condition of abortion is far better in the Nepali scenario]. (vi) Only criminalization is not sufficient, it should be effective, otherwise cynicism towards law may spread. (vi) Magnitude and probability of harm must be considered, such as abuse of child cost outweighs the cost to be paid to criminalize the act.
2.2. Concept of Penalization
A. Meaning of Punishment Criminal liability/responsibility is imposed for committing the crime in the form of punishment and compensation for damage. It is a kind of restriction and loss of certain legal rights. Criminal punishment is imposed with censure. It means that it is respond of the fact that the accused (defendant) has done wrongful act. So the level or gravity of punishment will give the signal of seriousness of wrongfulness. Philip Bean, a notable penologist, has analyzed the nature and specific features of punishment in his book “Punishment (1987)” Oxford: Martin and Robinson. In this book he has expressed his views as:
102 NJA Law Journal - 2013 c) Public Adjudication: The criminal sanctions are publicly adjudicated on individuals group who have breached the rules of criminal law. d) Public Response: It is inflicted as a public response to the offender for the breach of law in motive of enforcing the criminal law.
3. The Cycling Process of Criminalization
The nature of the criminal law is changing and dynamic. The criminal law will be changed according to changing attitude, value and morale of the society. The law of abortion in Nepal is reflection of such attitude, value and morale of society. According to the changing nature of criminal law, abortion was legalized by the eleventh amendment to the National Code. Before the eleventh amendment to the National Code, abortion in Nepal was a crime. After the Maoist conflict, the Government of Nepal enacted terrorism law to handle the problem of conflict and other organized crime. Likewise, Legislature-Parliament of Nepal ratified the UN Convention on Transnational Organized Crime and UN Convention against the Corruption 2000. At the same time, the Ministry of Home Affairs, Government of Nepal has tabled the draft Bill of Organized Crime to tackle the problem of changing nature of the crime and criminal law. According to the need of the time, the criminal law first criminalizes an act, and then if needed, decriminalize the same act. And again, there may be the possibilities of recriminalization and over criminalization. The meaning and concept of all these five terms has been explained briefly. 3.1. Criminalization means inclusion of certain or particular human conduct within the purview of criminal law. After the Maoist movement, the Government of Nepal criminalized some conducts as terrorist activities by enacting the Terrorism and Disruptive Activities Act, 2001 (now not in existence). 3.2. De-criminalization: Alteration or removal of certain human conduct from the criminal law is called decriminalization. Abortion was a criminal act before the eleventh amendment. But after the eleventh amendment, it was decriminalized under the certain conditions. It means now abortion is decriminalized. 3.3. Re-criminalization: If the decriminalized act is again included within the purview of criminal law, it is called recriminalization. 3.4. Double Criminalization: If the two laws have the same type of regulatory provisions, it is called double criminalization. Human Trafficking Act 2064, Chapter on “Human Trafficking” of National Code, 2020 BS has double criminalized the human trafficking because both laws have the provisions related with human trafficking. The Gender Equality Act 2066 has also double criminalized some issues related with gender based crime.
103 3.5. Over Criminalization: If the laws suddenly increased the punishment for any criminal activities, then it is called over criminalization. It is done for prevention and controlling the crime. The laws relating to rape, human trafficking, child abuse, domestic violence, organized crime, forest laws, anti-corruption law, money laundering law and so on have over criminalized some activities. It is the sign of over increasing crime rate in Nepal.
4. Purpose and Limits of Criminal Legislation
The concept of modern criminal jurisprudence was developed by Model Criminal Code^15 and Rome Statute of the International Criminal Court in recent time which is different than our traditional thinking about criminal law. The above two significant laws have changed the way of thinking about criminal law. Here we have tried to elaborate about the purposes and limits of criminal law according to the above two modern law.^16
- Criminal offences and penalties must be prescribed only for acts (human conducts) threatening or violating human rights and fundamental freedoms, as well as other rights and social values guaranteed and protected by the constitution or international law.
- Criminal offences and penalties must be prescribed only where protection of human rights and fundamental freedoms, as well as other rights and social values guaranteed and protected by the constitution or international law, could not be realized without criminal justice compulsion.
- Criminal offences, as well as the types and the range of penalties attached to them, must be based upon: a) the necessity for criminal justice compulsion; and b) its proportionality with the degree and nature of the danger against human rights and fundamental freedoms, as well as other rights and social values guaranteed and protected by the constitution or international law. The criminal law is being used to oppress or discriminate against the local population or to violate the fundamental rights and freedoms of individuals or certain groups of society. Therefore, most of the legal systems where the process of codification, modernization and democratization of criminal law is started, the drafters of the 15 Model Criminal Code, Vol. I, Model Criminal Codes for Post-Conflict Criminal Justice 2007 , Washington D.C.: United States Institute of Peace Press. 16 Section 2: Fundamental Principles, Article 2 of Model Criminal Code, Vol. I, Model Criminal Codes for Post- Conflict Criminal Justice 2007 , Washington D.C.: United States Institute of Peace Press, P.36. Concept of Criminalization, Penalization...
105 The Interim Constitution of Nepal, 2007 provides and recognizes this principle under Article 24 as fundamental right. The principle of legality/constitutionality itself, in theory, includes the following fundamental concepts and principle of criminal justice:
1. Nullum cirimen sine lege (No crime without the law) 2. Nulla poena sine lege (No punishment without the law) 3. Nullan crimen poena (No crime without the punishment ) 4. Sine lege stricta (Principle of strict construction) 5. Sine lege praevia (Principle of retroactivity) The principle of legality is developed by the different regional and international law of human rights. In 21st^ century, the Model Criminal Code^17 and Rome Statute of International Criminal Court have included some modern principles of principle of legality. Article 3 of Model Criminal Code has provided the principle of legality as:
- Criminal offences and penalties must be prescribed only by law.
- No penalty may be imposed upon any person for committing a criminal offense that did not constitute a criminal offense prior to it being committed and for which a penalty was not prescribed by law.
- Paragraphs 1 and 2 do not prejudice to the trial and punishment of any person for any act or omission that, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.
- The definition of criminal offense must be strictly construed, and the use of analogy in the interpretation of a criminal offense is prohibited.
- If the law was amended on one or more occasions after a criminal offense was perpetrated, the law that most favors the accused must be applied. 17 Supra note no. 15 Principle of Legality The principle of strict construction of penal statutes The principle of non retroactivity or ex-post facto law The principle of maximum certainty Concept of Criminalization, Penalization...
106 NJA Law Journal - 2013
- A penalty that is heavier than one that was applicable at the time a criminal offense was committed may not be imposed upon a person convicted of that offense. The principle of legality is common in most of legal systems and it is based on the requirement of certainty of the norms of criminal law. Legal certainty is an inherent element of the general definition of the rule of law. While it is recognized by all legal traditions, it articulates in different manners in different systems, depending on the legal traditions they follow. It is relevant to note that applying the criminal law, these cannot be a total absence of judicial discretion. The Model Criminal Code, for example; sets down the applicable defenses available to a person, which has committed by the legality principle. Article 21, on necessity, sets out the interests that a person can protect by his or her act of necessity, including “other protected interests.” This phrase requires judicial interpretation to give it a legal meaning. This distinction between this discretion and the sort of discretion found in systems that have a generally flexible attitude toward judicial discretion, though, is that the discretion is limited and is defined by law, as opposed to being a broad, open, and general one. Article 3 articulates four elements that constitute the principle of legality:
- The law must not operate retroactively to prosecute and penalize a person for behavior that was not classed as a criminal offense at the time the behavior was undertaken or where no penalty was prescribed by law;
- The law must be derived form a legislative act and must be written;
- The law must be specific and clear;
- The use of analogy is prohibited (this element includes the principle that where interpretations of the law conflict, they must be read in favor of the accused). Paragraphs 1 and 2 are relatively self-explanatory and proclaim the general principle of legality that criminal offenses and penalties must be prescribed by law that is promulgated by the legislature. These principles are sometimes called nullum crimen sine lege (no crime without law) and nulla peona sine lege (no punishment without law). They are contained in the constitutions and criminal legislation of many states and are included in international instruments such as Universal Declaration of Human Rights (Article 11), International Covenant on Civil and Political Rights (Article 15), the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 7), the American Convention on Human Rights (Article 9) and the African Charter of Human and Peoples’ Rights (Article 7).
108 NJA Law Journal - 2013 In the case of Pasang Dawa Lopachan v. HMG ,^18 the fact was that the defendant Pasang Dawa Lopachan sold victims Lucky Tamangni and Dikki Damangni in brothel of Bombay on April 13, 1985. The victims returned in 1990 and filed FIR on October 6, 1990 according to the Human Trafficking Activity (Control) Act, 2043 BS, which was enacted on November 19, 1986. The trial court Court of Appeal and Supreme Court convicted the defendant. There was question about the retroactivity of law. But, the Supreme Court said that this Act does not impose heavy penalty on the defendant than the Chapter on “Human Trafficking” of National Code 2020 BS. Therefore, the Human Trafficking Activity (Control) Act, 2043 BS is not a retroactive law. Though, Section 25 of Law of Evidence Act, 2034 BS has vested the burden of proof on the plaintiff, the procedure of case trial is always proceeded by the existing law of procedure. The law of procedure does not create rights and duties. So there is no violation of fundamental rights of the accused. In the case of Uttam Lama v. HMG^19 , the fact was that the defendant Uttam Lama and others sold the victim Charimaya Moktan in Shrawan (July) 2043 BS in a brothel in Bombay. The victim remained for ten years at a brothel in Bombay and returned to Nepal in 2053 BS and lodged FIR against the defendant. This case was also related with the retroactivity of law. The District Court and Court of Appeal convicted and sentenced him according to the Human Trafficking Activity (Control) Act, 2043. The defendant appealed at the Supreme Court against the decision of the lower courts and contended that the decision of the lower courts were against the Article 14(1) of the Constitution of the Kingdom of Nepal, 1990. In this case, the division bench of Supreme Court dismissed the appeal of the accused and referred the case to the full bench citing this type of issue was also raised in the case of Pasang Dawa Lopachan. Out of three judges, the majority decision of the full bench of the Supreme Court upheld the decision of the lower courts and dismissed the contention of the defendant. But, a judge Mr. Balram KC giving his dissenting opinion opined to the side of the defendant. Justice KC was of the opinion that the application of Human Trafficking Activity (Control) Act 2043 is violation of right against retroactivity of law. In the case of Ram Raja Prasad Singh,^20 the defendant Mr. Singh was accused of exploding bomb in different places in Nepal. At that time, there was no law which declares crime to the act of exploding bombs. But unfortunately, the then Panchayati government brought new law by giving the retrospective effect and convicted Mr. Singh with death penalty according to the new law. But this type of enacting the law and having retrospective effect is against the principle of legality. The reason to mention these three cases in above paragraphs is that the decision of the Supreme Court is against the principle of legality. How the decision of the 18 NLR (2058), Vol 3-4, DN 6992, P. 188. 19 NLR 2061, DN. 7432. 20 Ram Raja Prasad Singh and Others vs. HMG Terrorist Activities. NLR (2047), p. 1196.
109 Supreme Court violates the principle of legality has been explained in appropriate place in this article. In the case of Government of Nepal v Ishwor Prasad Kharel and Others^21 , the Supreme Court of Nepal has observed the Ex-post facto law as “it is not appropriate to raise the issue of the Ex-post facto law if the present law has just continued the old laws; if it has not increased the punishment than the old law; if the present law has just given the different name of act. The court can declare the law ultra vires on the basis of the principle of the Ex-post facto law if the law has made the crime to the act which was not crime before the enactment of the law; if the small and less serious crime is made bigger and serious crime, if the law has imposed the heavier punishment than the before, and if the law of evidence is amended as few evidence is sufficient to prove the crime in which before more evidence was needed.” B. The Principle of Maximum Certainty This principle states that the criminal law should be fixed and certain. It should not be vague and abstract. A vague law may in practice operate retroactively. No one will be sure what to do or not to do. Unless the law is clear, it is very difficult to determine the daily routine of the life. If an act is not crime at present time and latter it was declared crime, then people’s life will be freezed. So the ambit of the offence should be certain. In some jurisdiction, the crime is defined and punished accordingly and in some jurisdiction, the prohibitory approach is adopted and provided what is crime and what is not. If we see the development of Nepali criminal law, the prohibitory and definitive approaches have been adopted. The present Bill of Criminal Code 2067 has also adopted the definitive approach. Whatever the method is used to make the criminal law, it should be certain. C. The Principle of Strict Construction The principle of strict construction is very strictly applied in criminal law jurisdiction. It means the court cannot twist the meaning of word or expand the scope of law. It should be applied as it has been written in law. It should not search the intention of the legislature. Its function is just to apply the law. It cannot create the law. It cannot create the new crime by interpreting the law. It cannot make “girl” to “boy” or “wife” to “husband”. If we see the marital rape case filed by Advocate Meera Dhungana ,^22 the Supreme Court held against the principle of strict construction. In this case, the Supreme Court used an analogy and interpreted the term “others wife” as the “wife of the perpetrator itself.” It is against the principles of strict construction. 21 NLR 2066, Vol. 8, DN 8200, P. 1235. 22 Meera Dhungana v. HMG, Ministry of Law, Justice and Parliament, Affairs, SCB (2059) vol. p. 13. See also Subhadra Ramtel Sarkini and Others v. HMG, NLR (2046) p. 387. Concept of Criminalization, Penalization...
