LG Should Shun Adjudicative Functions
The local governments are taking shape in Nepal after almost two decades’ interregnum. The elections being held on coming Sunday in three provinces and four provinces during the following month is a historic moment for Nepal. Once the local governments start discharging their functions according to the provisions of the constitution and the law to be formulated accordingly, these institutions will really be the ones to deliver the fruits of development to the people.
However, the capacity of the local institutions to deliver the functions and competencies needs to be enhanced and strengthened. Furthermore, there are certain things both in the constitution and draft of the local government law under consideration of Parliament which need to be handled and implemented cautiously. The provision relating to the judicial committee in the constitution repeats the provision in the Local Self-governance Act which was not implemented particularly as it conflicts with the principles of the separation of power.
The elected local government that is responsible for legislating and executing functions and responsibilities should not be endowed with judicial responsibilities. This violates the principles of checks and balances which is fundamental to the working of a democratic polity. Taking this aspect into consideration, similar provision in the Local Self-governance Act (LSGA) was not implemented. As this has not been corrected in the new context too, a serious caution needs to be taken to give effect to the provision under the new dispensation. While drafting the constitution the lawmakers failed to take cognizance of the experiences gained through the community mediation services implemented in different rural communities of Nepal and copied the LSGA provisions which were not implemented in the past.
However, to rectify this omission the competency provided in the schedule 8 of the constitution in regard to management and implementation of community mediation (Melmilap) needs to be appreciated and furthered. What is also necessary is to give recognition to the indigenous traditions and customs that have been handed from generation to generation and effectively used by the indigenous ethnic groups living in different parts of the country. These indigenous communities have their own systems of community ordering or dispute resolution that operate outside the state and its institutions. Community norms rather than the legal rules govern the process and methodology of dispute resolution.
In fact, the lay people respected and trusted in the communities are in charge of the dispute
resolution. They know the local norms of the community in which they work. In some communities they are elected by the people in their communities, and they serve as arbitrators and mediators till they complete the term they were elected for. Their term can be renewed.
The Mukhiya system popular among the Thakalis in the Sub-Himalayan region of Nepal is very strong and rooted in the communal traditions. Similarly Barghar-Bhamansha is popular among the Tharus in Nepal. The Mukhiyas in Thakalis and Barghar in Tharus are elected by the popular assemblies of the villagers as a kind of head of the village republic.
The system of dispute resolution long embedded in the indigenous communities has its focus on locally derived systems of order. The focus of community mediation in indigenous groups is on reconciliation and restoration of social harmony. Some indigenous traditions in Nepal place emphasis on restorative penalties and reparation of damage. The disputes are viewed as that of communities not of the individuals involved in the cases.
Mostly, if disputes arise between two persons, they are inclined to settle the row / disputes by themselves. People shirk letting other people know about disputes/ disagreements they are carrying or having with other people. People fear of the social stigma attached to quarrels and disputes.
Besides these traditional justice mechanisms, there are also diverse options and institutions active in resolving disputes arising in the communities. As the people in the communities have been organised to cater to different social, cultural and economic functions and purposes, community- based groups and organisations have taken on the role to resolve inter-personal and inter-group disputes.
Forefront in undertaking the responsibilities in resolving the disputes in the communities have been forestry user groups, water user groups, mother groups and several categories of local groups active in the communities. It needs to be mentioned that the Jana Adalats (People’s
courts) created by the Maoists who waged armed insurgency in Nepal for over a decade from 1996 AD to 2006 AD were active to settle disputes in the communities. Often times, these mechanisms not recognised by the state were set up to counter or discredit the state institutions and they used coercion and duress to settle the disputes. They even resorted to annihilation as the severest and cruelest form of punishment to what they labeled as the liquidation of class enemy.
However, these parallel mechanisms no longer exist as the Maoists have already abandoned the violence and joined largely in the peaceful democratic political mainstream. The Maoists are leading the government now, and they are participating in the local elections for the first time in the history of the country. In their individual or organisational capacity the political party leaders are largely involved in resolving the disputes of all kinds of characteristics
including local resource allocations and so on.
Since elected local government institutions did not exist for over one and a half decades
the political parties or their cadres have taken on dominant and decisive role in the communities. Moreover, political party functionaries are involved in different social and political functions including the development projects prioritisation and selection at the local level. This has resulted into an increased influence and meddling of political actors especially at the local level.
It is, therefore, time to take stock of the various modes of dispute resolution at the community level and examine to what extent they have contributed towards stabilizing community harmony and relationships. And the executive body of the local government should not be involved in the adjudicative functions as it clashes with the principles of the separation of power.