Judicial Committees For Mediation
The local governments - Gaupalika and Nagarpalika - have completed almost one year of their operation. The Local Government Operation Act has been enacted and many other legal and administrative instruments have been in place now to enable the local governments in discharging their functions according to the provisions of the Constitution of Nepal, 2015 and tenets of federalism. In fact, in the scheme of federation, we have adopted, the local governments have been situated in a very strategic and practical position to deliver the fruits of development and democracy to the people. However, capacity deficits of the local institutions have been noticed that have come on the way of fully enabling them to accomplish the functions and competencies.
It has been felt that both institutional and organisational capacity of the local governments needs to be enhanced and strengthened. Furthermore, there are certain provisions both in the constitution and the currently promulgated Local Government Operation Act which need to be executed very cautiously with all prudence. The provision relating to judicial committee in the constitution and law in deed repeats the provision that did exist in the past legal instruments which has been currently replaced by the local government operation act enacted recently. The provision in the past law had not been formally implemented particularly due to the fact that it did conflict with the principles of the separation of powers and they did not possess the capacity to deal with such mandate.
The local government leaders elected through multiparty competition should be entrusted with mandates and functions responsible for legislating and executing administrative, development and governance related functions. They should not be, therefore, required to execute judicial tasks and functions. This not only can make them unpopular but violate the principles of the checks and balances which is fundamental to the working of the democratic polity. Thanks to the judicial committees constituted in Gaupalikas and Nagarpalikas according to the federal constitution and headed by deputy mayor have given priority to negotiation and mediation for consensual settlement (Melmilap) of disputes, not to award verdict to determine the guilty and innocent resulting into win-lose outcome. The news reports in the media indicate that the judicial committees have been able to resolve complex and sensitive family disputes and cases through recourse to mediation and negotiation.
Nepal has a rich tradition of consensual settlement of the community based disputes. The local leaders in Nepal are conversant with the technique of consensus-based dispute resolution that makes it easier for them to follow and use it. No matter the law and legal provision, they are prone to opt for mediation as the methodology of dispute resolution. The 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 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 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 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 through negotiation. People shirk letting other people know about disputes they are having with other people. People fear the social stigma attached to quarrel (Jhagara) or Bibad (disputes). Besides this 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 disputes in the communities have been forestry user groups, water user groups, mother groups and several category of local groups active in the communities. 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- Gaupalika and Nagarpalika - should not be involved in the adjudicative functions in any forms. The local governments should be properly guided to focus rather on the executive and legislative functions that cater to the aspirations of the people than to carry out the adjudicative functions.