”This order of the Supreme Court is historic in terms of access to justice. The decision will be historic in ending the situation where people have to leave their jobs and travel thousands of kilometers from outside the country to testify when the court process is long.”
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The Supreme Court has ruled that defendants outside Nepal can give their statements through video conference instead of appearing in court. The order was made by a joint bench of Supreme Court Justices Hari Prasad Phuyal and Bal Krishna Dhakal on 20 Jestha 2083.
On 16 July 2082, the Commission for the Investigation of Abuse of Authority filed a corruption case in the Special Court. Since the defendant in the case, Sabhya KC, was outside Nepal, his legal practitioner had filed a petition on 20 July to allow him to give his statement and appear in the case through video conference. Three days later, in the petition, the then members of the court, Murari Babu Shrestha and Ritendra Thapa, in a bench of three judges of the Special Court, expressed the opinion that there may be problems in implementing the order by giving statements through video conference and that the statement should not be made, citing the lack of a clear legal provision.
The then chairman of the court, Tek Narayan Kunwar, had a different opinion on the petition. He had given his opinion that he could appear at the embassy of the concerned country and give his statement based on the provisions of the Criminal Procedure Code and the Supreme Court's guidelines on conducting hearings through video conferencing. The order prohibiting the statement was implemented based on the opinion of two judges.
An appeal was filed in the Supreme Court on behalf of the petitioner against the order. Hearing the petition, a joint bench of Supreme Court Justices Phuyal and Dhakal overturned the order of the special court prohibiting the statement from abroad. The then President of the special court, Kunwar, has upheld the dissenting opinion. Section 4 (1) (d) of the Supreme Court's guidelines on conducting hearings through video conferencing, 2078 BS, mentions that statements can be made through audio-visual means and also mentions that statements can be made through audio-visual means in cases related to confinement and in (e) of the same sub-section.
In the latest order of the Supreme Court, it has been said that the issue of issuing a detention order by taking the statement of the defendant for the purpose of implementing the aforementioned directives, not limited to the legal format, should not be considered prohibited by law.
The Supreme Court has also mentioned that the court order can be implemented through the embassy of the concerned country, considering the global expansion of the Nepali community and the rapid development of technology. With this order of the Supreme Court, a precedent has been set that statements and appearances in court can be made from abroad in criminal cases. This order has now paved the way for Nepalis from all over the world to appear at the embassy and give statements in the designated court. Keshav Bhattarai, the advocate for the petitioner, says that this case has set a new standard in the matter of judicial access.
He says - this order of the Supreme Court is historic in terms of judicial access. Now, when the court process is long, the decision will be historic in ending the situation of having to leave work and travel thousands of kilometers from outside the country to make a statement.
But to maintain confidentiality, the bench has mentioned that the electronic record of the statement should be securely stored only on the official and encrypted server of the court and its access should be limited only to the authorized judge and, if necessary, to the government bodies. Baburam Aryal, Secretary of the Nepal Bar Association, argues that the order in this case is important for expanding access to justice.
He said, 'With the development of technology, access to justice should also be expanded, the order made by the Supreme Court plays a positive role in expanding judicial access.'
Advocate Saroj Krishna Ghimire, a member of the executive committee of Law Asia, says that there should be no limitation on statements to be made through video conferences except in some heinous cases. According to Ghimire, the court must be liberal in matters including statements through video conferences except in cases of heinous nature, this practice is also in many countries. At a time when it is already possible to conduct court debates and statements while sitting at home, this order of the Supreme Court plays a positive role.
Newly appointed Chief Justice Manoj Kumar Sharma has also expressed his commitment to a technology-friendly judiciary. This order will also play a positive role in expanding judicial access. However, there are some challenges regarding the implementation of the judgment, including what happens when an order is issued to send a person to prison in a detention case.
