Submit your Article

Presumption of innocence, sometimes known as ‘innocent until proven guilty’, is a cornerstone of criminal justice systems around the globe. According to this theory, the prosecution has the burden of proof and an accused individual is presumed innocent until and until their innocence is established through a fair and impartial trial. It is both a defense against erroneous convictions and a necessary part of the right to a just trial. Presumption of innocence has its roots in Roman law, namely in the adage “Ei incumbit probatio qui dicit, non qui negat,” which states that “the burden of proof is on the one who declares, not on the one who denies.”

This idea became well-known in the late 18th century, thanks to the writings of legal scholars like Sir William Blackstone, who is credited with saying, “It is better that ten guilty persons escape than that one innocent suffer.” Over time, this idea persisted and shaped the evolution of contemporary legal frameworks. But it didn’t become well-known in European legal systems until the Enlightenment. Prominent thinkers like Voltaire and Cesare Beccaria fought for the rights of the accused, highlighting the need for fair trials and the presumption of innocence. A further testament to the presumption of innocence was the French Revolution's 1789 Declaration of the Rights of Man and of the Citizen, which stated that “Every man is presumed innocent until he has been declared guilty.”

Legal structure

A number of important international law texts contain references to the presumption of innocence. According to Article 11 of the 1948 Universal Declaration of Human Rights, “Everyone charged with a penal offense has the right to be presumed innocent until proven guilty according to law in a public trial at which they have had all the guarantees necessary for their defense.” The International Covenant on Civil and Political Rights (1966) stipulates in Article 14(2) that “Everyone charged with a criminal offense shall have the right to be presumed innocent until proven guilty according to law.” 

Constitutional recognition 

The presumption of innocence is specifically recognized by a number of national constitutions and legal frameworks. For example: The United States Constitution’s Fifth and Fourteenth Amendments guarantee that no one will be deprived of their life, liberty, or property without first undergoing a fair legal process. According to Article 48 of the European Union’s Charter of Fundamental Rights, “Everyone who has been charged shall be presumed innocent until proven guilty according to law.”

Article 20(5) of the Constitution guarantees the fundamental constitutional right to be presumed innocent unless and until proven guilty. In the same vein, the presumption of innocence in criminal cases is maintained by Section 12 of the National Penal Code, 2018. Therefore, in order to protect the integrity of the legal system, our hard-won liberties, and the dignity of the accused, criminal proceedings and the presentation of suspects urgently need to be changed. It is necessary to discontinue the widely used procedure whereby the Nepal Police parade detainees or individuals accused of minor offenses and issue statements, including information on the people they have detained, including pictures. The institution also needs to be cautious about the effects the practice might have on its investigations into the crime and the suspects, who might be found not guilty by the court. Thus, it is preferable to refrain from taking such rash decisions that can backfire and to inform the public and media until after the investigation is finished and the court issues a definitive ruling.

Principal’s significance

The protection provided by the assumption of innocence shields people from unfair allegations and incorrect convictions. It guarantees that the prosecution bears the burden of proof, having to prove the accused person’s guilt beyond a reasonable doubt. This strict level of proof is necessary to prevent mistakes and preserve the public’s faith in the legal system. The idea of a fair trial is based on this notion. It ensures that the accused has the right to a defense, which includes the capacity to refute the prosecution’s case, have access to legal counsel, and submit evidence. The presumption of innocence protects the fairness and impartiality of the legal system by guaranteeing that the accused receives such treatment. 

In actuality, the presumption of innocent has several difficulties despite its significance:

Influence of the media, extensive media coverage in high-profile cases may cause the public to adopt conclusions about the accused’s guilt or innocence before the trial even ends. This phenomenon, sometimes referred to as ‘trial by media’, has the potential to compromise the trial’s impartiality and threaten the presumption of innocence.

Prior to trial retention, the presumption of innocence may be violated in some jurisdictions where people are detained in pre-trial custody for protracted periods of time. The fact that being detained alone may lead to feelings of guilt emphasizes the necessity for legal systems to strike a balance between the rights of the accused and public safety.

Practical and legal obstacles, reverse onus provisions—which transfer the burden of proof to the accused under certain conditions—may undermine the presumption of innocence in some judicial systems. It is important to closely examine these exclusions to make sure that they don’t compromise fundamental rights.

Presumption of innocence is a fundamental tenet of legal systems all throughout the world. It guarantees that no one is unfairly punished, and that the integrity of the legal system is upheld. Although there are still obstacles in the way of completely implementing this idea, its continuous inclusion in legislative frameworks emphasizes how crucial it is to preserving the rule of law and safeguarding human rights. Presumption of innocence is a fundamental safeguard in the criminal justice system that helps to ensure that people are not unfairly convicted and that justice is served. It sustains the public's faith in the legal system and supports the fundamental human right to a fair trial. But in order to prevent this principle from being undermined by the media, pre-trial procedures, and legislative changes, constant watchfulness is required.

MCC has successfully partnered with 46 countries worldwide, investing more than $15bn in grants that have helped lift over 260m people out of poverty.  This means that we have a rich and varied experience partnering with countries on ambitious and complex compacts, working through diverse challenges, finding innovative solutions and achieving success.  

Thanks to the dedication of MCA-Nepal, led by its diverse board representing civil society, the private sector and multi-sectoral government agencies including the Ministry of Finance, Ministry of Forest and Environment, Ministry of Physical Infrastructure and Transportation, Ministry of Energy, and NEA, we are on track to write a new success story here in Nepal. 

Over the past year, there has been real momentum in the implementation of the MCC Nepal Compact. The signing of the contracts for three substations, the provision of technical support to the Electricity Regulatory Authority, the initiation of the MCA Partnership Program to support project-affected communities, the imminent signing of the 18 km transmission line contract, and the notable progress on obtaining environmental permits and land acquisition provide tangible evidence of the hard work and tremendous achievements of the MCA team. 

At the end of the day, the success of the MCC Compact is ultimately for the benefit of the Nepali people. I want to take this opportunity to thank the media for your accurate reporting that has played a crucial role in keeping the public informed and engaged.  Your work is vital, and we welcome your continued, constructive engagement as we move forward on this Compact. It is part of our core commitment to keeping the public informed and maintaining transparency in our work. As such, the entire MCC Nepal Compact agreement, procurement documents, completed reports and other pertinent information are always available to you and the public on the MCA Nepal website.

It is important to understand that the MCC Nepal Compact is not an isolated initiative; it is an extension of the United States' longstanding legacy of support for Nepal’s growth and development.  The projects we are undertaking will help Nepal meet its domestic power goals while unlocking the potential for cross-border power trade. This transmission line backbone we are building will enable more efficient electricity movement across the grid, contributing to increased access to electricity for all Nepalis and the economic opportunity for cross-border and regional trade of clean energy.

In addition to energy, the MCC Nepal Compact also focuses on improving road maintenance practices and introducing a sustainable climate-smart road improvement process known as Full Depth Reclamation technology to Nepal. These projects will provide higher quality longer lasting roads that make travel less expensive and safer for drivers and pedestrians alike along a segment of the East-West Highway.

We understand that our goals are ambitious and that infrastructure projects come with their own set of challenges. However, I am extremely encouraged by the commitment of all stakeholders, particularly the Government of Nepal and the dedication and quality of the MCA team. And I am confident that, together, we can overcome all challenges, optimize our resources, deliver on all Compact priorities and continue to make meaningful progress for the people of Nepal.

We are proud to be part of this important chapter in Nepal’s growth and transformation and to support the government in achieving the goals of the MCC Nepal Compact and making progress toward Nepal’s long-term development vision. 

The author is resident country director for MCC in Nepal

I am happy to share that following the Entry Into Force (EIF) on 30 Aug 2023, MCA-Nepal has completed the procurement of some major contracts and made significant progress in preparing the sites for contractors’ access. This included ensuring work on land acquisition and forest clearance is achieved in adherence with the regulations of the Government of Nepal, MCC Environment Guidelines and International Finance Corporation (IFC) Performance Standard 5. I would like to highlight specific achievements and updates starting with the Electricity Transmission Project. 

One-year progress and updates 

MCA-Nepal awarded and signed contracts worth around $126m for the construction of three 400 kV GIS substations at three locations from May-July 2024 in Nawalparasi West, Nuwakot and Tanahun. Two substations, the New Damauli Substation and the Ratmate Substation will each have a capacity of 1,000 MVA, making them the largest substations in the country. 

Similarly, a two-year $1m Livelihood Restoration Program for 270 project-affected people in Ratmate Substation concluded on 30 May 2024 to pave the way for new businesses and prosperity. Project-affected people benefited from the program through training in high-value agriculture, a wide array of vocational skills, and job skills such as weaving, advanced computer training and financial literacy. MCA-Nepal had earlier acquired around 400 ropanis of land for the substation. 

The contractor for the 18-km cross-border transmission line segment has been selected and will be awarded within Aug 2024. Consultant Supervision Engineers are on board for supervision of construction works of transmission lines and substations and currently working to help MCA-Nepal re-launch procurement for the 297-km transmission line later this year. 

For the transmission line tower pads land acquisition, CDO-led Compensation Fixation Committees (CFC) have been formed to fix land rates for 856 tower pads across nine out of 10 districts. Rates for the lands to be acquired in Dhading, Makwanpur and Nawalparasi West have been fixed as of July 2024. MCA-Nepal has also completed the opening of bank accounts and provided financial literacy training for all persons receiving compensation, which are necessary precursors to making payments in these three districts. Similarly, the CFCs in six districts will be fixing the land rates for respective districts.  MCA-Nepal also plans to start and complete work in the remaining district of Kathmandu this fiscal year. 

Forest census works have been completed in nine out of 10 project-affected districts. MCA-Nepal is now doing the verification to apply for forest permits. Similar to land acquisition, MCA-Nepal plans to start and complete work in Kathmandu district this fiscal year. 

An important component of the Electricity Transmission Project is the Power Sector Technical Assistance. A contract worth $1.2m was signed on 22 July 2024 to provide advisory support in the economic/financial, technical, legal and policy/institutional regulatory work of the Electricity Regulatory Commission. The goal is to create an enabling environment of transparency, efficiency and competition in Nepal’s power sector.

Likewise, a contract worth $2.4m was signed on 15 July 2024 to provide consultancy services to enhance electricity use with a focus on preparing Municipal Energy Plans and developing capacities for productive use of electricity within affected wards under the MCA Partnership Program, a benefit-sharing activity under the Electricity Transmission Project.  

On the progress and updates on the Road Maintenance Project, the Initial Environmental Examination (IEE) Report for road maintenance works in the 40 km segment of the road from Dhan Khola to Lamahi along the East-West Highway has been approved. MCA-Nepal plans to launch the procurement of road maintenance works using Full Depth Reclamation (FDR) technology at the earliest this year. This segment will be maintained by applying new climate-smart technology of Full Depth Reclamation (FDR) and Superpave. 

Looking ahead, our goals for the second year are to sign the contract for the remaining 297 km of transmission line and move ahead in the construction of transmission lines and substations both, fix land rates in all affected districts and distribute compensation, and to move ahead with the road maintenance works with the selection of a contractor. We anticipate meeting these goals but we know that historically, in Nepal, working with communities that will be impacted by the project’s land acquisition can take time. We have been successfully navigating this and setting the bar in terms of handling this process fairly and plan to continue that going forward. 

The author is executive director at MCA-Nepal

Public delivery is key for any government to survive in people’s sentiments. If there is no delivery by the government or if it disrespects people’s aspirations, public anger against the government rises. People may be forced to use online or offline sources to express their dissatisfaction. In this hyper-connected world, the internet is a powerful means to amplify public frustration through videos or text on various social media platforms. When public frustration multiplies with the help of the internet and social media, the government typically feels threatened and may attempt to curtail it. Countering opinions expressed on social media by the government is common these days. Even in full-fledged democracies, governments often justify such actions in the name of national security. However, there is a thin line between national security and public expression. That said, in a democratic setup, the right to express and learn from differing opinions is fundamental to democracy.

Concern over Social Media Bill

Considering these powerful features of social media, the Nepal government is planning to table a bill aimed at curtailing rights and freedom of expression online. There are many disagreements regarding the provisions of this bill. A study carried out by the Dignity Initiative (DI), an emerging Dalit Think Tank in Nepal, highlights that some provisions are intended to silence the voices of Dalit, women and marginalized communities. As we know, Dalits in Nepal have historically been excluded, oppressed and have had limited access to mainstream media. Social media platforms have become a powerful tool for expressing opinions, sharing thoughts, voicing dissatisfaction and fostering public discourse against the discriminatory caste system. If such a bill comes into effect, it will likely roll back the progress made in amplifying the voices of these people. 

Several policies and directives already exist to regulate social media, including the Electronic Transactions Act, 2008, the National Penal Code, 2017 (Prohibition on disclosing confidential matters-Section 294, Prohibition of taking and disfiguring photographs of any person without their consent-Section 295, Prohibition of breaching privacy through electronic means-Section 298, Prohibition on committing libel-Section 307), the Copyright Act, the Social Media Management Directive, 2023, a Regulation to Regulate Advertisements, 2020, the National Cyber Security Policy,2023, the Social Media (Usage and Regulation) Bill, 2023, and the Information Technology and Cyber Security Bill, 2024.

According to Santosh Sigdel, who is associated with Digital Rights Nepal, new legal frameworks for regulating social media are currently being discussed by the government. The government has already implemented the “Guidelines for Regulating the Use of Social Media, 2023” and now aims to develop a more comprehensive “Social Media Act.” The Ministry of Communications & Information Technology has called for public responses (allowing just 15 days) to the draft bill introduced in Dec-Jan 2023. By providing only 15 days for public response, the government intended to limit the broader consultative process among concerned stakeholders, thereby avoiding major comments and feedback. 

The proposed bill aims (claim made by the government) to promote the safe, dignified, and orderly use of social media, addressing issues such as cyber-bullying, hate speech and misinformation. The bill seeks to define terms like “social media,” “social media platform,” and “cyber-bullying” and emphasizes the healthy use of social media to enhance social harmony and good governance. Further, the bill includes establishing a Social Media Management Council alongside other bodies like the Department of Information and Broadcasting, the Press Council and Nepal Police to oversee content regulation and address grievances. As we already have several bodies in place, the addition of another council could jeopardize the effective functioning of the organization due to a lack of inter-agency coordination. In Nepal, we are already facing this issue, with the coordination between the federal and provincial government structures being a prime example. Therefore, the government should not only propose additional bodies but also clearly define the concrete duties, responsibilities and powers of these bodies.

However, this proposed bill has faced significant criticism, particularly regarding its real intent and public dissatisfaction over unnecessary restrictions on freedom of expression, communication rights, and the right to privacy. There is also concern that the bill could lead to censorship, excessive executive power and restrictions on online anonymity. The government's aim to impose over-regulation on the internet and social media networks could limit access to the internet. Furthermore, the bill is silent on the protection of users' data and does not mention a statute of limitations, leading to potential legal challenges that could hamper its effective implementation. Ultimately, this proposed social media bill raises vital questions about its impact on fundamental rights and its potential to violate the constitutional principles of Nepal.

Impact on marginalized communities 

When the government attempts to implement repressive policies to limit online freedom of expression, marginalized communities, including Dalits and women, will be among the most affected. Traditional media are controlled by elites and often disregard the voices of marginalized communities. However, with the rise of social media, people from oppressed classes have found a better way to express their concerns without fear. Social media restrictions are also detrimental to companies, as they can reduce customer engagement and harm the revenue base of these companies. This is an era of government facilitation and de-regulation.

Moreover, in line with the rights of marginalized communities to online freedom of expression, it is important to ensure their dignity so that they are not humiliated, discriminated, harassed, or bullied based on their surname, religion or gender. We need content moderation and monitoring on these aspects rather than a blanket approach to content surveillance. The bill should ensure that digital platforms or social media do not become platforms that intensify discrimination against particular caste, ethnic or gender groups. 

The question of inclusivity is paramount in the overall implementation of social media strategies, involving users, government and digital platforms. From a user’s perspective, there is an urgent need for digital literacy to enable marginalized people to safely express, share and learn from the various opinions circulating on the internet. However, limited digital literacy sometimes presents significant challenges; the marginalized communities may become trapped in the vast network of misinformation and disinformation. Despite this, social media remains a powerful tool without gatekeepers, especially for bringing out the voices of marginalized communities. 

Way forward

Any social media regulation or digital media policies should ensure the right to freedom and the right to live with dignity for marginalized communities. Underlining this fact, DI, in its report, has proposed several recommendations for improving the functionality of social media in Nepal for a positive cause. First, by abiding by international best practices, Nepal can align with the UN Guiding Principles on Business and Human Rights and the Manila Principles on Intermediary Liability to develop a comprehensive regulatory framework that respects human rights (by focusing on marginalized communities). Secondly, a Principal-Agent Relationship model can be implemented, where the government allocates the power to regulate social media platforms based on clear delegation mandates and control mechanisms. Thirdly, a Public-Private Partnership approach, in which social media platforms develop their guidelines, content moderation standards and other regulatory mechanisms, can lead to better coordination between self-regulation by companies and local regulations. Fourth, there is a need for Transparency and Accountability for social media platforms to provide insight into content moderation practices and decision-making processes. Additionally, a Child-Centric Approach should be adopted, aligning with the UN Best Interests of the Child principle, to ensure protection from harmful content when preparing social media regulations. Furthermore, periodic reviews and modernization of existing legislation should take into account international best practices and technological advancements. Lastly, regional cooperation with neighboring countries and regional organizations is essential for facilitating information sharing and harmonizing regulations for cross-border content issues.