Privileges of Witness

Definition:

Certain witnesses are immune from giving evidence or no one can compel to certain witness to give evidence .This is known as privilege of witness. The term privilege is derived from the Latin word ‘privilege’ which means special legal right, advantage, or immunity belonging to a person, class or office. The privilege of witness is the right  of a witness to withhold evidence  to disclose  certain  matters. The communications that can not be compelled  to be disclosed  privilege communication. The principle of privilege  of a witness is based on  the grounds  of convenience and public policy. Privilege is a legal  freedom on the part of one person as against another  to do a given  act or legal freedom not to do a certain act. Privilege is an exemption  from some  duty, burden or attendance to which  certain person are entitled.

As per Moonir, Privilege of witness means, “right or duties  to refuse  , disclose a fact”. Similarly Walker said that ,”Privilege of witness is a rule of evidence , whereby a witness may be rejected in refusing  to answer a question  or produce a document  or answer  on interrogatory.Phipson said that there are mainly three reasons behind the privilege of witness as

  1. National Security,

b.Proper function  of public service and

c.Information for the detection of crime.



 Classification:

There are certain circumstances in which certain persons are not compelled to testify/give evidence .Any statement made by such person  is said to be privilege. The Evidence Act 2031 of Nepal signifies about the privilege of witness are:

a.Family privilege:

Family privilege person like father and mother, husband and wife , son and daughter cannot be compelled to be witness against each other. This is known as family  privilege ,in order to keep family relationship intact, confidential , loving, the law has  adopted this rule.

b.Matrimonial privilege:

Husband and wife are not compelled to give evidence against each other on matters which he/she communicated the other in the source of their  married life. In order to insure confidentiality, love  and affection between husband and wife , the law has guaranteed this sort of privilege .This privilege continuous even after  the death of husband  or divorce between  the parties .The evidence shall be given only by the consent or permission  of husband or wife. This provision has the exception  where evidence shall be given by husband  or wife if there is case between  them and if husband  or wife  commits any crime against his/her husband or wife.In the case of Stillman vs.Stillman , American Supreme Court  observed that matrimonial privilege is founded upon sound policy. Those living  in the marriage relation should not be compelled  or to betray the mutual trust and confidence which such relation implies.

c.Judicial privilege:

Judges or Magistrates are not compelled to give evidence  on matters , which are related  to their professional activities. Judges or Magistrates may not be compelled  to answer  on those matter where he/she has expressed  the matter being a judge. However , if any superior  court orders to express such matter  then he/she must express. Also , if any act occurs in the court before the judge  then the judge may be taken as the witness  of such act. In order to ensure independence of judiciary and allow the judge  to act freely , the law has adopted  this rule.

d.State Privilege:

This kind of privilege deals with the non-confidential matters related  to the state administration. Until and unless the concerned authority does not give the consent, such confidential  matters may not be  revealed. Documents related to security matter or diplomacy is some examples of such documents. They can not be compelled to give evidence, if it is against the interest of the nation. In  formers relating to revenue proceeding or crime  are protected under this privilege.In the case of HMG.vs Pasang Tsi Tibetan Bhote, the Supreme Court of Nepal made very remarkable decision , one which brought  the amendment in the Evidence Act 2031 regarding  the privilege  of the police officer  not to disclose the source or information  of the crime. and similarly in the case of Damodar Subedi vs. Ministry of Water Resources, Supreme Court of Nepal  held that the information which is to be kept confidential  cannot be forced to be revealed according to Article 16 of the Constitution of the Kingdom of Nepal 2047.

e.Professional Privilege:

Legal counseling between lawyer and client are matters, which are not liable to exposure by the lawyer without express permission  of the client. The client also  can not be compelled  to express anything  that took place between  hire and the lawyer. In order  to ensure that the client be free to tell everything  to his/her lawyer and received proper  legal advice  thereon, the law has adopted this rule. However , this privilege is not available in the  following two situations as (1)if the client has come to  the lawyer  to seek  such advice  which is designed to  commit a crime. Such as A comes to B , a lawyer  and says that I have prepared  a forged document and  I want to make case against C. This communication does not come  within  the privileged and (2)if the client has committed  further crime after the appointment  of the lawyer  to his/her knowledge , he/she can not claim privilege on it. The second crime is liable to expression .Neither the lawyer can advice his/her client  to commit and act which  is crime .Apart from the privileges state above  witness can  be compelled to answer  all questions put  to him before the court. He/she can not be withheld  for answering any questions on the ground  that if may expose him/her to criminal charge. But he/she can not be prosecuted on the basis  of such answer only.

f.Privilege against self-incrimination:

No person is bound to give evidence against himself/herself. The right relates with the right to remain silence  of the accused and the right against self-incrimination of the witness. A witness may refuse to answer  questions or give documentary evidence  only if the answer  or document  would incriminate the witness.Similarly , the accused has the right  to deny answering  the question which would  intend  to incriminate him/her.However , the accused does not hold the privilege  not to give his/her finger prints, photographs etc. A person who is suspected  of a crime may be compelled  to testify before a grand jury , a legislative body, or an administrative board. The person must appear and answer  questions, but he/she may claim  the privilege  against self-incrimination when necessary. Also , if the accused reveals a part  of the fact , then he/she is obliged  to reveals a part  of that fact, then he/she  is obliged to reveal whole the fact. Confession sometimes is also regarded as the incriminating statement  if not  corroborated by the other independent evidence. In the case of Rajendra Birahi vs.HMG, The Supreme Court of Nepal declared that an accused should not be convicted on the basis of confession made by him in police custody unless corroborated by other independent evidences. If the doubt has been has been raised that the statement was not prepared in verbatim and in the case of Chandra Bahadur vs.HMG the Supreme Court has also laid down that it is for the prosecution  to establish the guilt of an accused and that the accused need not make any self incriminatory statement because he has the right to remain silent. One cannot be regarded as an offender due to remaining silence because the constitution had guaranteed the right against self-incrimination and so no person is compel to say anything against him/her. But if the accused voluntarily say something then that can be taken as evidence on the support or against his/her. He/she is not made liable  for remaining silence but if the  collected evidence  shows the person liable  for the crime done then he/she will be made liable for the crime through remain silence.Similarly in the case of Miranda vs. Arizona the U.S.Supreme Court has protected the right against self –incrimination where the accused may deny answering the question or may  refuse  to give  the documentary evidence  which would intend to incriminate the accused himself/herself.The Interim Constitution of Nepal (2007) ,Article 24(7) also relates with the protection  of accused or the witness from those questions which would intend to make these people liable  of the punishment.