JC’s Functions In Confusion
The provision in the federal constitution with regard to Judicial Committee (Nyayik Samiti) has provoked debates and generated some issues which deserve consideration for its constructive and fair implementation. The lingering confusions were reflected in a dialogue organised, the other day, where the Ministry of Federal Affairs and General Administration (MoFAGA) official, civil society organisation representatives and local government deputy mayors debated intensely on the subject. The issues that loomed larger in the dialogue appertained to the mandates and competence of the judicial committee that intend to foster its contribution to making justice accessible to local communities through recourse to alternative dispute resolution.
It is relevant to note that Article 217 of the Constitution of Nepal stipulates about the Judicial Committee mentioning that the panel headed by the deputy chief of urban and rural municipality (Gaupalika and Nagarpalika) shall settle the prescribed category of disputes arisen at the local level. Furthermore, with a view to give substantiation to the constitutional provision sections 47 to 54 of the Local Government Operation Act 2017 provide an elaboration of the constitutional provision on local dispute resolution with intent to give enforcement to it. The provisions in the law intend to focus on mediation requiring that community disputes should be resolved through mediated facilitation to arrive at mutually agreed gain-gain outcome. And recourse to resolution through awarding decision is allowed for a limited category of disputes in case the attempt to resolve though mediation at the behest of judicial committees failed.
Going by the empirical evidences obtained during the last one year from the implementation of the provision at the local level, it is generally found that the judicial committees have used their authority to enhance and institutionalise mediated facilitation for dispute resolution. The judicial committees seem very wary and cautious not to be dragged into controversy by taking recourse to awarding decision. The judicial committee members as they are elected on the basis of multiparty competition, their verdict resulting into win and lose of the respective disputants can be perceived to be guided by partiality and therefore politically motivated.
In fact , nowhere in the world especially in the democratic societies, the elected office-bearers for the executive branch of the government, irrespective of the levels and tiers, are mandated to carry out the adjudicative functions. This does not tally with the democratic principles of the separation of power. In fact, the principle of the separation of powers is the cornerstone of any democratic system. According to this principle, executive, legislative and judicial powers of any level of the government should be divided into different branches and persons, not concentrated into one. The functionaries working in different branches should be separate because of the corrupting nature of concentration of power. If the body or persons that made the laws could also enforce them and adjudicate disputes, it would undermine rule of law and basic principles of fairness.
From the functional efficiency and effectiveness point of view too, separation of power and role differentiation is very significant. It helps to improve the energy and efficiency of functionaries by allowing them to keep focus in order to accomplish and fulfil their functions and responsibilities effectively. Viewed against the yardstick of the separation of powers, the provision in the new Local Government Operation Act, 2017 with regard to dispute adjudication- though for very limited category of disputes- appears to be inappropriate and irrelevant. The adjudicative role entrusted to judicial committees at the local level mostly headed by woman deputy mayors will constrict their space and take opportunities away from them in acquiring and developing competence as democratic government leaders exercising authority on legislative , executive and regulatory functions.
According to the Local Government Operation Act, 2017, the deputy mayors as the senior elected functionaries of the executive branch of the local government have been entrusted with several functions and responsibilities. Section 16 of the Act lists several key and crucial responsibilities of the deputy mayors that have crucial effect and ramifications for overall social and political development at the local level. The deputy mayors have to coordinate several key committees related with budget and revenue, planning, monitoring and evaluation, collaboration with development partners, especially civil society organisations, and oversee governance and development function. Mention in this context should be made of the fact that around ninety four percent of the deputy mayors at the local level are women, and they represent different political formation and social groups. This has been the outcome of the progressive provision based on positive discrimination in the new federal Constitution of Nepal. The role of deputy mayors as coordinator of the judicial committee can be viewed with positive note especially due to the expectations that the issues pertaining to gender justice, women empowerment and social justice have the possibility of receiving fair hearing and treatment.
However, the task is easier said than done. Adjudicating disputes entails the task of adhering to due process of law that implies, among others, drawing clear and judicious lines between the right and wrong, guilty and non-guilty, winners and losers with reference to adduced evidences and provisions of the law. The deputy mayors are neither trained for adjudicating disputes nor have temperament as popularly elected functionary to act as judge and deliver verdict in an adversarial mode.
Instead of enhancing empowerment of the deputy mayors and promoting gender justice, the provision related with adjudicative functions- through limited to a few categories of cases- is likely to result into diminishing of their role as the key actor for local democratic governance and social empowerment. There is, therefore, a need to take due care in regard to the implementation of the adjudicative function enjoined to the judicial committees at the local level so that the spirit of federal governance for inclusive development and local democracy could be thrived and fostered.