A COMPARATIVE PROPOSAL FOR TRIAL BY
JURY IN NEPALI LEGAL SYSTEM
Nepal Law Campus
Faculty of Law
BA/LLB, 3rd Year
Roll No. 13
March 3, 2013
I have always been a firm believer in trial by jury. Somehow it is ingrained in me. As it is in most Englishmen. It is a lesson which has been handed down from one generation to another during the last 800 years. The trial by jury – a tradition held dear to the British – is a legal proceeding in which a jury either makes a decision or, makes findings of fact which are then applied by a judge. It usually comprises of 12 men. The jury system is a system developed in the Common Law, taken as its integral part which mandates that “No free man shall be captured and or, imprisoned or, disseised of his freehold and or, exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgement of his peers.” The Jury System can be traced back upto the Greek and the Roman era. The Greeks were succeeded by the Romans while the Roman Empire collapsed. But it is largely the British System that has embodied the Jury System and established it as a tradition of the Common Law System. King William – the Conqueror established the Norman Dynasty in England by his conquest of England in 1066. The Jury System was introduced by a Norman King in England. One day the King was watching the justice delivery process, and noticed that a single judge could not always impart fair justice. Hence he observed that twelve laymen could give better justice than a judge. As a result he asked his advisors to compose a jury of 12 people along with a judge to settle the disputes filed at the court of law. The Magna Carta of 1215 further secured trial by jury stating that, * For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a husbandman the implements of his husbandry, if they fall upon the mercy of a royal court. None of these fines shall be imposed except by the assessment on oath of reputable men of the neighbourhood. * Earls and barons shall be fined only by their equals, and in proportion to the gravity of their offence. * To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these. * If we have deprived or dispossessed any Welshmen of lands, liberties, or anything else in England or in Wales, without the lawful judgement of their equals, these are at once to be returned to them. A dispute on this point shall be determined in the Marches by the judgement of equals. English law shall apply to holdings of land in England, Welsh law to those in Wales, and the law of the Marches to those in the Marches. The Welsh shall treat us and ours in the same way.
It has already been stated that the history of Jury System covers over a period of 800 years. During that period the Jury System developed, and changed with time but never discarded. Some instances of its course of development is given below: 1. The Principle of Unanimous:
This principle was established in 1367 and it lasted for 600 years until 1967. In 1967, the parliament altered it. The verdict was held valid if the majority was ten to two. 2. The jury were kept without food, heat or light once they retired to consider their verdict. The time –hallowed formula was, ‘Without meat, drink, fire or candle’ 3. Once only reasonable men (with some qualifications) were allowed to sit as juror. Now all people, men or , women, deaf or , blind, honest or, dishonest could sit as jurymen. All who are 18 years of age and are listed to the...