Legal Pluralism Key To Justice And Harmony
A news item published in a local newspaper reported the other day that the formal law enforcement and justice mechanism like the police authorities and courts in Manang district have not recorded any complaints and cases this year. The news report added that as the locals use their own traditional customary practices and mechanism to resolve their cases and disputes, they are averse to using the mechanism created by the law.
The district court in Manang has been blanked this year as, according to the news item, not a single civil or criminal suit has been brought to the court. It is not a context of this year alone, similar reports emanated from the court in the past as well.
Mustang district is no different from Manang. In that Himalayan district too, the state institutions and mechanism stay idle for most of the year. Local disputes and issues are rarely brought to the notice of the court.
Some years ago, a project on promoting alternative dispute resolution, especially focused on mediation, was promoted in Mustang district. The project trained a pool of mediators to help resolve local disputes. But it did not attract the much-needed attention of the local people because they had their own customary mechanism and institutional resources to govern and resolve their disputes. They relied more on the Mukhiya system to discuss and arbitrate on their cases than on the mechanism created by the project, although the mode and modality of operation of the project-trained mediators was similar to that of the Mukhiya.
Mediators like the Mukhiya tend to build consensus between the disputing parties and resolve the cases. This is one of the rich indigenous resources, traditionally inherited from the past, to conduct dispute resolution and community governance.
The state itself has been making efforts to cast off the veil of centralised governance and decentralise the system. The state has created institutions and mechanisms to foster accessibility of justice at the local level as part of local governance.
In fact, looking more to the local and indigenous institutions has been a worldwide phenomenon than taking recourse to the formal mechanism for accessing justice at the local level. It has attracted considerable support and attention worldwide.
This movement to provide access to justice at the local level can be considered a manifestation of a new approach to both legal scholarship and legal reform in many different parts of the world. It has been especially strong in Europe and the United States since the 1960s. The idea of a welfare state led to a call for change in the national legal system. Needless to say, enhancing ‘access to justice’, especially for the disadvantaged groups, has been one of the motivations of a welfare state.
At the theoretical level, access to justice through local institutions challenges the formalistic approach to justice. The formalistic approach tends to identify the law with the state system and law enforcement. This did not take into consideration the ‘real-world’ components that are users of justice, local institutions, practices, processes and their societal context. Therefore, there is a need to go beyond this limited formal conception of law.
In fact, when the formal justice system operates in practice, it is not neutral, as claimed, and manifests according to class, gender and ethnicity. Thus, the movement for access to justice through an informal local approach represents a move towards a more realistic and pluralistic vision of human society and access to justice. It emphasises the need to contextualise the law within a particular cultural background.
Indeed, people’s material circumstances influence their experience of justice. Access to justice at the local level tries to find possible solutions to existing economic, organisational and procedural difficulties in accessing justice. This can help ensure making justice more responsive and accessible to all citizens, in particular, the poor.
Access to justice at the local level has also been influenced by the legal pluralist challenge to legal centralism. Legal centralism is basically the idea that state laws and formal institutions have a monopoly in social ordering and justice delivery. The valid expression of the legal pluralist position would hold that norms generated in various spheres of social interaction (such as religious or customary norm, or indeed business practices) are no less important than formal state laws.
Thus access to justice at the local level emphasises that alternatives that are informed and nurtured by informal systems, which the people have developed through their social interactions, must be put in place to guarantee effective access to justice for all. There have been, therefore, attempts to search for real ‘alternatives’ to the ordinary courts and litigation procedures. This growing concern to search for and find effective alternatives to the formal judicial system has facilitated the progressive support for mediation, conciliation and arbitration as the means of dispute resolution.
Alternative dispute resolution practices are not new. And societies the world over have traditionally been using non-judicial, indigenous methods to resolve disputes. What is relatively new is the extensive promotion and proliferation of alternative dispute resolution models.
It would be relevant to mention that alternative dispute resolution has gained increased popularity not only as a tool for resolution of disputes but also for achieving the goals hinging on social peace and harmony that are broader than the resolution of specific disputes and conflicts.
The Constitution of Nepal 2015 has entrusted the local government the function to legislate a consensual mechanism for peace and justice at the local level. This will contribute towards building an alternative forum for justice at the local level in lieu of the formal judicial mechanism that is inaccessible and expensive for the common people.