Balancing strict liability and natural justice in Nepal

Fast-track administrative penalties maintain public order, yet failing to ensure a citizen's right to be heard weakens the rule of law

KATHMANDU: The criminal justice system takes act (actus reus) and intent (mens rea) as the core elements of a crime. It is said that an act alone without ‘intent’ does not make anyone a criminal. Although the act itself is considered a criminal element in ‘possessory’ offenses such as drugs, in other nature of offenses, the presence of both act and intent is taken as a mandatory condition of a crime.

In this context, the prevalent Latin legal maxim ‘Actus non facit reum nisi mens sit rea’, meaning ‘An act alone does not make someone guilty unless there is a guilty mind’, holds sway. This does not mean that an act without intent is never a crime.

With the development of the modern welfare state and administrative law, the concept of strict liability or absolute liability has also evolved. To maintain public safety, health, environmental protection, and administrative good order, the practice in areas such as traffic fines, municipal and local body regulations, food safety, and environmental protection is to take legal action regardless of the presence of intent.

Theoretical perspective

Under offenses falling under absolute or strict liability, administrative and quasi-judicial bodies make immediate decisions through summary procedures to recover fines and compensation from individuals or institutions that violate legal duties. Even if the accused person is given an opportunity for defense or explanation, in many cases, a process of detailed judicial adjudication based on sufficient evidence is not adopted.

This can raise questions about the effectiveness of judicial principles such as the principles of natural justice—especially the opportunity to be heard and the obligation to prove allegations beyond a reasonable doubt.

In offenses involving strict liability, the state primarily looks at whether the act occurred or not. The plea that the accused had no bad intent or that the act occurred by mistake generally finds no place. That is, the mere occurrence of an act prohibited by law can become the basis for punishment or a fine.

Such fines are imposed by non-judicial officials—such as municipal police, traffic police, and administrative officials empowered by law. Its objective is to maintain public safety, public health, environmental protection, and social order. Therefore, such actions are considered quasi-judicial in nature.