Print Edition - 2018-10-22 | Oped
The third branch
- Establishing judicial committees at all 753 municipalities is great, but it has a long way to go
Oct 22, 2018-
The right to get justice is one of the most fundamental rights of a human being. But for ordinary people, justice has become almost inaccessible because they cannot invest ample time or enough money in its pursuit. One study by the Nepal Law Society (NLS) had shown that out of total disputes, only around 15 percent tend to be registered in proper court and judicial authorities. Even then, there are around one lakh pending cases at different levels of courts. In this backdrop, the issue of justice at community has been one of the key challenges for Nepalese judiciary. Providing justice at low cost and in the community or neighbo urhood can bring about huge transformation in the sector of justice delivery.The practice of local justice dispensation, however, is not new for Nepal. After the 1990 Constitution and the subsequent Local Self Governance Act (LGOA) 1999, there were local agencies recognised as quasi judicial bodies and the practice of community mediation, too, gained ground.
But the new constitution of 2015 has taken a big step forward in this direction. To overcome the inefficiencies of the formal system; increase access to justice and bridge the formal/informal justice divide, the drafters of the Constitution envisioned judicial committees at each of the 753 municipalities and rural municipality.
Headed by deputy mayor at the municipal level and deputy chairperson at the rural municipality, as per Article 217 of Constitution of Nepal, the three-member committee has the mandate to adjudicate, arbitrate and refer cases for mediation at the local level based on their jurisdiction. Similarly, Article 217 (2) provides for the election of the other two members of the judicial committees from within the village and municipal assemblies.
As per section 47 (1) of LGOA, judicial committees have been empowered to settle disputes related to 13 specific matters. Likewise, as per clause 47 (2) in 11 other matters, judicial committee has the right to settle the disputes through mediation. However, the disputants can also directly register the cases to the court, in the cases under clause 47 (2). Likewise, the disputants can appeal at the district court if they are dissatisfied with any of the committee decision.
In case of adjudication and arbitration, judicial committees collectively exercise its jurisdiction, and the opinion of the majority is regarded as the decision of the committee. In cases of mediation, judicial committees keep a roster of mediators and refer the parties to the mediation centres at the ward level.
Following the local-level election last year, all the 753 municipalities and rural municipalities now have their own judicial committee. As these committees have started operating and hearing cases, a recent monitoring visit was undertaken by the Nepal Law Society to local levels in Saptari, Dhading and Kavre districts. There we found that there are both negative and positive aspects in their current operation.
While it is positive that around 95 percent of the committee chiefs are women, hardly 2 percent of committee members have legal background. What’s more, the general public also found it convenient to approach for justice. Therefore, both capacity development and changing the mindset of people will be an issue. In most cases, the due process according to the spirit of the law was not followed either. Very rarely did the committees followed step-by-step processes such as accepting application, recording of statement, collection of evidence and decision making/execution. Also there were no separate institutional/administrative mechanism available to judicial committees. Further, doubts were raised about the execution of decision by judicial committee in places where the chair of the committee and the local level executive come from different parties. And finally, most of the local levels were found to have exercised the power of mediation themselves instead of mobilising the local level mediators as per the law. Only Dhulikhel municipality was found to have appointed five mediators in each ward.
In the absence of regulations on Local Government Operation Act, 2017, these committees lack clarity, institutional capacity and coherent policy framework. There has to be multi-pronged interventions to empower the local level judicial committees so that they can operate in the spirit of the constitution and ensure justice delivery. For this to happen, first, the laws should clarify whether the local level judicial committees are merely quasi judicial bodies or local courts. Second, clear and unambiguous set of rules, procedures and guidelines have to be formulated based on the LGOA so that there is a set protocol that the committee can follow while adjudicating. Third, the office-bearers of judicial committee must be provided with basic legal training to build their capacity and confidence.
Schedule 8 of the Constitution states that the local level assemblies are responsible for local courts, settlement and management of mediation. This means, the local level legislatures will have to formulate the rules, procedures and guidelines. They will require resource and knowledge support to formulate those laws. That can be the stepping stone towards the successful operation of judicial committees. Their success is also inter-linked with the success of federalism and the new constitution.
Pradhan is the executive director of the Nepal Law Society.
Published: 22-10-2018 08:10