Informal Justice Institutions
The formal law enforcement and justice mechanism like police authorities, district administration offices and courts in the Himalayan districts such as Manang and Mustang have not much to do when it comes to the administration of law and justice. Since the local people in these districts mostly use and take resort to their own traditional governance institutions and practices to get their grievances addressed, the cases resolved and receive services, they are generally averse to avail and using the formal state institutions and mechanisms created by the law of the land. Often times, courts in these districts receive no cases and litigations to adjudicate upon and arrive at an effective settlement.
It is reported that the state institutions and mechanism stay idle in the Himalayan districts for most period of the year. The local disputes and issues are rarely brought to the notice of the court and administrative agencies. Though, of late, the scenario has changed especially following the elections held for the three layers of the governments- local, province and federal under federal scheme of governance, the reluctance of the local people to visit the formal administrative agencies and claim public services looks not very much frequent and encouraging . Especially in Mustang district, as this writer has visited quite often, the local people rely more on Mukhiyas to discuss and arbitrate on their cases than the mechanism created by the state.
The Mukhiyas tend to build consensus between the disputing parties and help resolve the cases. This is one of the several aspects of the rich indigenous governance resources nurtured and inherited from the past especially towards resolution of disputes, conducting the affairs of the informal community governance. During the recent days the Nepali state has cast off the veil of unitary based centralised rule and devolved system of governance is being institutionalised in the country under federal system. The state has created institutions and mechanism like judicial committees (Nyayaik Samiti) at the local level to foster and enhance accessibility of justice at the local level.
However, according preference to the local and indigenous resources and institutions when it comes to management of community affairs has been the general practice in most of the countries. In fact access to justice through recourse to alternative dispute resolution mechanism has been an important manifestation of a new approach to both legal scholarship and legal reform in many countries of the world. It has been especially strong in Europe the United States and many other countries. Enhancing ‘access to justice,’ especially for the marginalised and vulnerable groups has been one of the rational and motivations of the welfare state which requires placing emphasis on the institutionalisation of the alternative dispute resolution mechanism.
At theoretical level, the access to justice through alternative institutions challenged the formalistic approach to justice. The formalistic approach tends to identify law with state system and law enforcement. The formal approach to justice did not take the interest of the real users and beneficiaries into account with reference to institutions, practices processes and their societal context. Therefore, it was felt that there was a need to go beyond the limited formal juridical conception of law. In fact, when the formal justice system operates in practice it is not neutral as it manifests according to class, gender and ethnicity. Thus, the movement for access to justice through informal and alternative 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 and economic entitlements circumstances influence their experience of justice. Access to justice through recourse to the alternative mechanism attempts to find possible solutions to 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 and marginalised .The access to justice at the local level has also been influenced by the bringing about structural change pluralist challenge to legal centralism.
The legal centralism is basically the idea that state laws and formal institutions have a monopoly in social ordering and justice delivery. Thus the 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 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 and arbitration as the means of dispute resolution .Needless to repeat, alternative dispute resolution practices are not new.
And societies world-over have been using non-judicial, indigenous methods to resolve disputes. What is relatively new is the extensive promotion and proliferation of
alternative dispute resolution models to resolve complicated cases involving multi-stakeholders.
It is relevant to mention the fact that increasing use of alternative dispute resolution has gained popularity not only as a tool for resolution of disputes but for achieving such goals as cultivation of social peace and harmony. These goals are very much broader and transformative than the resolution of specific disputes and conflicts. These do not only contribute towards improving relations between the disputing parties but also effect structural changes in the society.