- In a reflection of true decentralisation, local units have been allowed to act as judges
Feb 7, 2018-
The constitution has envisaged the creation of Judicial Committees in each of the 753 local level units. They will be headed by the deputy mayor in municipalities and by the deputy chairperson in rural municipalities, and deliver justice on specific disputes. The three-member Judicial Committee will consist of two members elected by the members of the Village Assembly or Municipal Assembly from among themselves. The purpose behind this constitutional provision is to ensure that justice is home-delivered, in every sense of the word. The very idea of federal restructuring of Nepal was driven by the desire to decentralise and devolve authority and power. Therefore, the constitution has specified that judicial powers should be devolved along with executive and legislative powers. It has specified jurisdictions for the local level too.
Further in keeping with the constitutional stipulations, the Local Level (Operation) Act has also come into force, which clarifies the functions and duties of the local level. Chapter 8 of the act deals with the judicial duties of the local entity. The act provides two specific rights to the Judicial Committee: the right to settle disputes and the right to settle disputes through mediation only.
The Judicial Committee has been empowered to settle disputes related to 13 specific matters. They include property boundary disputes, ‘sandhi sarpan’ (inconvenience with respect to boundary or way out), ‘aali dhur’, canals, dams, ditches or allocation of water and encroachment on roads or way out; disputes about compensation for damage to crops; disputes about payment of wages; disputes about lost and found cattle; and other disputes designated by federal and provincial laws. The local level Judicial Committee can adjudicate these disputes; but the decision can be appealed to the District Court.
Likewise, in 11 other matters, the Judicial Committee has the right to settle disputes through mediation only. These disputes include encroachment of private lands; divorce; assault that draws a prison sentence of up to a year; theft and robbery; and trespassing. The Judicial Committee is required to maintain records of all the disputes and their resolution. Annual reports have to be presented to the concerned assembly. The act also says how the Judicial Committee will exercise its jurisdiction: The head and members of the committee shall collectively exercise its jurisdiction, and the opinion of the majority shall be regarded as the decision of the committee.
That apart, the act clarifies the process of execution of justice. One important component in this process is the list of mediators. With regard to many types of disputes, the committee has the right to settle them through the use of mediators only. Clause 49 (3) of the act states that the committee shall have disputes mediated through mediators listed by the committee. Likewise, Clause 49 (10) states that the committee may create a Mediation Centre in each ward for this purpose. And in case there is more than one mediation centre in a ward, the disputing parties can choose the one they like.
Although the act has made clear the processes and jurisdictions of the Judicial Committees, there are many problems and challenges facing their effective operation. The committees, as stipulated by the constitution, are headed by the deputy mayor or deputy chairperson. Most of the elected representatives, including the deputy mayors and deputy chairpersons, are new and inexperienced. They lack knowledge and experience in administrative and managerial matters, let alone judicial processes.
On top of that, the local level structures themselves are new, and thus in a state of disarray. Although months have passed since the local elections, they are yet to be well established in terms of physical structures and administrative and managerial capabilities. Moreover, in more than 90 percent of the 753 local units, the positions of deputy mayor and deputy chairperson are held by women. Therefore, any empowerment of this committee should also be seen as an effort to empower women.
As these new women representatives begin to take up their responsibilities, it is the duty of one and all to support and empower them so that they become effective. For starters, there is a need to provide orientation and training on judicial matters. Perhaps a handbook can be developed that will provide an easy and effective protocol in addressing disputes in a specific manner. If these committees become effective, the jurisdiction of the District Court can also be gradually transferred to these local courts. The success of Judicial Committees can lead to the success of women representatives, and, ultimately, to the success of the local level. This will increase public trust in women’s political leadership and augur well for inclusive and democratic constitutional development in Nepal.
Pradhan is the executive director of the Nepal Law Society
Published: 07-02-2018 07:45