Settling Disputes At Local Level
The country has already conducted elections for three tiers of the government. The local election was held almost six months ago while the elections for provincial and federal government has been accomplished, the other day. Computing of votes for first-past-the-post (FPTP) seats has been completed whereas counting for Proportional Representation seats is underway. The final tally will confirm the position of the parties in the polls though the voters have lent their massive support to the Left Alliance, expecting that it will provide stable government to resolve the problems and issues confronting the nation. Though federal and provincial elections are very important for institutionalisation of democratic polity based on federalism, from the perspectives of citizens the local governments are rather very crucial for citizen-centric service delivery of all and sundry characters.
Fruits of development
Once the local governments start discharging their functions fully according to the provisions of the constitution of Nepal 2015 and the Local Governance Act 2017, these institutions will really be the ones to deliver the fruits of development and democracy 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 provisions both in the constitution and the Act which need to be executed very cautiously. The provision relating to judicial committee in the constitution repeats the provision in the Local Self Governance Act which was not implemented particularly due to the fact that it conflicts with the principles of the separation of power. The local government leaders elected through multiparty competition are mainly responsible for legislating and executing several development and governance related functions and competencies.
They should not be required to execute judicial tasks and functions. This not only makes them unpopular but violates the principles of the checks and balances which is fundamental to the working of the democratic polity. There have been several experiences to be taken cognizance while implementing provisions related to judicial functions at the local level. The informal traditional justice institutions exist in rural communities of Nepal. Moreover, what is also necessary is to give due recognition to the indigenous traditions and customs that have been handed from generation to generation and effectively used by the indigenous ethnic groups to handle community disputes.
These indigenous communities have their own system of dispute resolution that operates 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 community people respected and trusted in the localities are in charge of the dispute resolution. These people 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 that is popular among the Thakalis in the sub-Himalayan region of Nepal is very strong and rooted in communal traditions. Similarly, Badghar- Bhalamansha is popular among the Tharus in Nepal. The Mukhiyas in Thakalis and Badghar in Tharus are elected by the popular assembly 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 community order. The focus of community based mediation 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 disputes by themselves. People shirk letting other people know about disputes they are having with other people. People fear the social stigma attached to quarrel (Jhagada) or Bibad (disputes). Besides, these traditional justice mechanism, there are a diverse options and institutions active in resolving disputes 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 category of local groups active in the communities.
It needs to be mentioned that the Jana Adalat (People’s court), created by the Maoists who conducted armed insurgency in Nepal for over a decade from 1996 to 2006, were active to settle disputes in the communities. Often times, these mechanism 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 labelled as the liquidation of class enemy. However, these extra-legal parallel mechanisms no longer exist as the Maoists have already abandoned the violence and joined in the peaceful democratic political mainstream. 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 in an increased influence and meddling of political actors especially at the local level.
It is time to take stock of the various modes of dispute resolution at the community level and examine to what extent they have contributed towards stabilising community harmony and relationships. And the executive body of the local government should not be involved in the adjudicative functions in any forms as it clashes with the principles of the separation of power. The local government should be properly guided to focus on the executive and legislative functions that cater to the aspirations of the people.