Opinion
Turning the tide
The draft constitution’s provision on forming a judicial committee threatens to reverse gains in local justiceMukti Rijal
Many Nepalis heaved a sigh of relief when key political parties signed the 16-point accord in early June. The agreement provided a much-needed breakthrough in the constitution-drafting process since the first Constituent Assembly elections were held in 2008. It was an arduous task to bring the constitution-writing process back on track. Even so, the draft constitution which has now been released for public discussion is not flawless. It also does not do enough to meet the aspirations of all segments of the Nepali populace. Some provisions of the draft even seem oblivious of the gains made in the past. The attention of this writer has been particularly drawn to the provisions of the draft constitution dealing with local governance and dispute resolution.
Whiff of the past
Article 215 of the draft constitution mentions that a Judicial Committee (Nyayik Samiti) at the Gaonpalika and Nagarpalika will hear and settle the cases by exercising the authority given by the federal or provincial law. The Judicial Committee, according to the constitution, shall consist of two members of the Gaon Sabha and Nagar Sabha under the convenorship of the deputy chief of the Gaonpalika and Nagarpalika executive respectively. This provision in the draft constitution smacks of a similar provision in the Village Panchayat Act 2018 B.S (Gaon Panchayat Ain) that was enacted and enforced after the introduction of the partyless Panchayat polity in 2017 BS. The Nyaya Samiti provisioned in the Section 41of the Village Panchayat Act was vested with authority, among others, as per the law to follow and adhere to the procedures prescribed for the district court in course of hearing and deciding on the cases.
It was indeed ironical for the state to endow the executive authority at the local level with such sweeping judicial powers. It not only set itself up against the democratic principle of separation of powers but also made a mockery of justice by burdening the local people with the stupendous responsibility of behaving and discharging their roles and functions as the justices of the court. However, it is interesting to note that the statutory provision was not fully implemented during the Panchayat era; perhaps due to the fear that the provision could be misused or abused due to the lack of institutional, infrastructural and individual capacity at the local level.
Local mediation
This was fully modified after the restoration of democracy in 1990. The enactment of the Local Self Governance Act in 1999 heralded the process of democratic decentralisation and pursued the concept of devolution of power to local government institutions including Village Development Committees (VDCs), District Development Committees (DDCs) and municipalities.
The Act takes a complete break from the past and provisions for a panel of community mediators, in lieu of the elected executives, to help resolve the disputes at the local level through an elaborate process of interest-based negotiation. The members of the panel are to be drawn from a trusted group of persons renowned for their integrity and impartiality in the community. Further, though mediators can take up the role of arbitrators in case the disputes are difficult to resolve due to the hardened positions and deep distrust among the disputing parties, community practices have fully confirmed that the mediators successfully help resolve most disputes without resorting to arbitration.
The Mediation Act 2011 also restates and reconfirms the practical importance of community mediation stipulating its procedures to ascertain the outcomes that satisfy the interests and needs of the parties locked in disputes. In mediation, disputing parties retain control over their own decisions instead of having anything imposed upon them. A mediator facilitates dialogues and interactions between the disputing parties, helps them to clarify their substantive, procedural and psychological interests to arrive at a solution agreeable to the conflicting parties. The local bodies, especially the VDCs and the municipalities, have supported the implementation of community mediation to help disputing parties reach a win-win solution .The courts also use mediation as a mechanism to resolve some compoundable and mediatable disputes under the rubric of court referred mediation in place of adversarial litigation. Data show that around 30,000 community-based disputes have been satisfactorily resolved through this way. Similarly, chronic litigations that clogged and strained the courts have been resolved through mediation process setting new landmarks in rebuilding and restoring relationships between disputants and producing durable outcomes.
Amend the provision
Against this backdrop, the first national conference of mediators was held in June under the aegis of the Mediation Council in Kathmandu and headed by the sitting judge of the Supreme Court. Around 80 mediators from around the country participated in the conference and adopted the declaration calling for government support for expansion and upgrading of mediation services in different sectors for social harmony and reconciliation.
At a time when communities have upheld and recognised the value and importance of mediation—not only for dispute resolution but for community building, peace and development—the provision on Judicial Committee in the draft constitution purports to roll back the process promoted by the provision related to forming a mediation board at the local level in the Local Self Governance Act. The Constituent Assembly should correct this and strongly articulate its position in favour of community mediation practices at the local level with support of the local government institutions—VDCs and municipalities—to encourage and build the capacity of the communities to resolve disputes through participatory interest-based dialogues and negotiation.
Rijal has a PhD in local governance and conflict resolution