Note of CHAPTER 6: PRESUMPTIONS, from exam perspective (cursory notes).
CHAPTER 6: PRESUMPTIONS
(assuming something to be true).
Constitutionality of a statute
Presumption of constitutionality of statute is a legal theory developed by common law courts to deal with the cases challenging the constitutionality of a statute.
Every statute enacted by legislature is regarded as valid and it is presumed that every law should be able to pass the test of constitutionality.
In the case of doubt regarding the unconstitutionality of statute before the court, the court should put a higher burden on the one who claims unconstitutionality of a statute.
Case:
Triratna Tuladhar on the behalf of Shankharatna Tuladhar Vs. Special Police Department HMG.
If the court finds that, while interpreting an Act at one side seems constitutional and at other side it seems unconstitutional then, in that situation the court must interprets such Acts in a constitutional manner. (ऐनको एक तरिकाबाट व्याख्या गर्दा संविधानसंगत हुन्छ र दोस्रो तरिकाबाट व्याख्या गर्दा असंवैधानिक हुन्छ भने अदालतले पहिलो तरिका अपनाउनु पर्दछ).
Presumption of jurisdiction.
Law always comes with remedial provision with its enactment. So, law does not ever intend to withhold access to remedy. Therefore, the courts should not interpret in any manner to not provide remedy for the rights enshrined in the act's rules constitution or statute.
If there is no presumption about a jurisdiction then in such a situation it is assumed of general jurisdiction has such jurisdiction to look over the case and provide the remedy.
Case
Masaihaji Musalman Vs Kapilvastu District Court:
In this case the full bench of Supreme Court noted that even in the case of amendment, unless the statute rejects the jurisdiction of a particular court, it is not wrong to assume that ‘prescribed official’ also includes district courts.
Presumption against Retrospective Legislation.
There is a fundamental rule of English law that no statute is constructed or construed to have a respective operation, unless the construction appears very clearly in the terms of Act or arises by necessary or distinct operations.
Generally, law is presumed to apply prospectively but not retrospectively. A retrospective statute does not operate backward, it operates forward from a date prior to its enactment.
For example: If ABC Act 2024 A.D has been enacted and it has mentioned that it will look after the subject matters and incident from 2020 A.D. as well.
But in situations when a statute is silent in regard to its application then the court should generally assume that it applies prospectively but not retrospectively.
Article 20(4) of Constitution of Nepal;2072 B.S. has mentioned that no person shall be liable for punishment for an act which was not punishable by the law in force when the act was committed.
Case:
Uttam Lama Vs. HMG
Ramraja Prasad Singh Vs. HMG
Presumption against violation of international obligation.
It is presumed that legislation does not enact anything which is contrary to the international law. The court should give benefit of doubt to the idea that the domestic statute is in compliance with international laws.
The country around the world accepts the international laws either by monism or dualism approach and then they applied the provision of such international laws in their domestic laws.
Section 9 of Nepal Treaty Act 2047 has the provision.
Prepared and Edited by Manish Rajak and Madhu Dahal
