Customary Institutions Challenge To Legal Centralism
Nepal is indeed a society of plural social norms and traditions. No uniform and monolithic system and mechanism of social control and order regulates and governs the Nepalese society. The state laws and institutions have not been able to entrench into the deeper rung of the communities. This is indicated by some reports revealing that the existing customs and traditions in the communities living in such districts like Manang, Mustang and Solukhumbu do prevail over the writ of the state and its institutions.
A news item published in local newspaper reported not very long back that the formal law enforcement and justice mechanism like police authorities and courts in Manang district have not recorded any complaints and cases registered this year. The news report added that as locals use and apply their own traditional customary local practices and mechanism to resolve their cases and disputed issues, they are averse to using the mechanism created by the formal law of the land.
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 for settlement. This is not the context of this year alone, similar reports did emanate from the Manang court in the past as well rendering the state institutions redundantly. The Mustang district is not different from the Manang too. In that Himalayan district too, the state institutions and mechanism stay idle and passive there for most of the year. The local disputes and issues, whatsoever, are rarely brought to the notice of the court.
Some years ago a project on promoting alternative dispute resolution especially focused on mediation was attempted to be introduced in Mustang district. The project trained a pool of mediators to help resolve the local disputes. But it did not attract much needed attention of the local people because they have had their own customary mechanism and institutional resources to govern and resolve their disputes.
Though a pool of mediators was made available to help resolve the disputes by the project, the local people relied more on the Mukhiya system to discuss and arbitrate on their cases than the mechanism created by the project although the mode and modality of operation of the project trained mediators was very similar to that of the Mukhiya system.
The mediators like the Mukhiyas tend to build consensus between the disputing parties and settle the cases. This is one part of the rich indigenous resources traditionally inherited from the past evolved for conducting dispute resolution and community governance. There is another part of the fact that the state itself has attempted to cast off the veil of centralised governance and attempting to decentralise the system. The state has created institutions and mechanism at the local level 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 the worldwide phenomenon than taking recourse to the formal mechanism for access to justice at the local level. It has attracted considerable support and attention worldwide. This movement of access to justice at local level can be considered a very important manifestation of a new approach to both the legal scholarship and legal reform in many different parts of the world. It has been specially strong in Europe and the United States since the1960s.
The idea of a welfare state led to make a call for changes in the national legal system. Needless to say, enhancing access to justice, especially for disadvantaged groups, has been one of the motivations of the welfare state. At a theoretical level, the access to justice through local institutions challenges the formalistic approach to justice. The formalistic approach tends to identify law with state system and law enforcement. This is not taken 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 informal local approach represented a move towards a more realistic and pluralistic vision of human society and access to justice. It emphasised the need to contextualise 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 the existing economic, organisational and procedural difficulties in accessing justice. This can help ensure to make 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. The legal centralism is basically the idea that the 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 the norms generated in various spheres of social interactions are no less important than formal state laws. Thus, access to justice at the local level emphasises that the alternatives that are informed and nurtured by informal systems which 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 as the means of dispute resolution.
Needless to repeat, alternative dispute resolution practices are not new. Societies world over have traditionally been using the non-judicial and indigenous methods to resolve the disputes. The constitution of Nepal has entrusted local governments--Gaunpalika and Nagarpalika – the function to legislate, promote and enhance mediation (Melmilap) for peace and justice at the local level. This will contribute towards building alternative forum for justice at the local level in lieu of the formal judicial mechanism that is inaccessible and also expensive for the common people. However, the test of its success lies on how the elected local government leaders pursue and handle this responsibility.