Local Adjudication Under Scanner
The Local Government Operation Act enacted almost one-and-half-a-year ago in line with the federal constitution has several provisions that have far-reaching consequences in the management of local community affairs and functions. The Act is the organic law for the management of local governance that holds same worth and prominence similar to the federal constitution to govern and manage the national federal affairs. One of such provisions enshrined in section 47 of the Act that has caught attention of all the stakeholders and also generated controversy has been the one dealing with local dispute resolution under the purview of judicial committee coordinated by deputy mayor or vice chairperson at the local level.
One of the reasons why this has become a matter of discussion is because of the fact that the legal provision itself lends to some imprecision and confusions. The provision combines both mediation and arbitration with a plain and simple meaning that the local judicial committee should arbitrate over the dispute in case of non-settlement through mediation (Melmilap). However, interpretation of the provision is done by some quarters to require the judicial committee to follow the court like procedures to resolve the disputes in case the attempt to settle the dispute through mediation failed. The adjudicative procedure involves a lengthy, transaction based and cumbersome procedure which is spelt out in the civil and criminal procedure codes. But this is not feasible to be followed by the judicial committee elected by the people at local level through democratic exercise.
In most cases the deputy mayors or vice chairpersons of Nagarpalikas and Gaupalikas have been the women who are not knowledgeable enough to understand the complexity of handling procedures involved in adjudication. In fact, adjudication is by its very nature goes against the rural ethos and socio-psychological formation of the local communities in Nepal. A person who picks up quarrel too often and brings dispute against his or her neighbour is generally dubbed as mischief monger. People are always alert and cautious and, therefore, tend to keep themselves on guard against such deviance. Disputes in the rural communities are interpreted as socially deviant, discrepant behaviours and conduct. It is also widely held that indulging in disputes brings dishonour not only to family but also to one’s own clan and lineage as well.
People in the rural communities of Nepal mostly tend to conceal or suppress the occurrence of disputes in the families. They try to keep and hide them strictly in private realm. Disputes are settled in a way through negotiation that no outsider should know about them. The popular saying in the communities goes “One does not share the bread, but one shares the blame”. Insulting a person’s family, caste and even village amounts to insulting him or her. Even the simple allegations against members of distant relation are perceived to impair honour and social prestige of all extended families (Khandan), relatives and kinfolks.
Showing conformity to customs and traditions offers a sense of security to villagers and non-conformism runs of the risk of being ostracised or castigated. Harmony in behaviour of individuals is necessary for smooth running of a rural community. This is achieved by making the individuals conform to a settled pattern of behavior in community. Social pressure is strongly felt in rural community where everyone knows everyone else. News travels quickly in villages along established connections and networks of relatives. The various modes of “social pressures” against the wrongdoers exist in communities. They may differ from one place to the other or the ethnic groups to the other groups. No official sanctions, fines and punishment compel to conform to terms of settlement. In fact, good relationship among the members in community has economic and social value. Mutual aid relationships based on complementarity is very crucial for people to act and relate to each other. Participation in local networks and attitudes of mutual trust make it easier for the groups to reach to decisions and implement collective action.
In the communities where a certain pattern of behaviour is expected from individuals for the benefit of the group, social pressures and fear of exclusion can induce these individuals to conform and act in obedience to the expected behaviour. People in the community give priority to collaborate and keep relationships based on harmony undisturbed. They try not to let social fabric and sanctity tear apart. Conciliatory practices have continued and sustained in the communities to endure relationships and carry out dispute resolution. Reciprocity and trust are the basis of this relationship without which the communities cannot pool in their capacities, resources and possibilities jointly and live together. Social life is indeed a mesh of interpersonal connection and linkages. Social norms are strengthened through interaction and interconnection.
The explicit and written codifications of norms that are found in statutory book are not always the norms the people follow in their day to day life. The norms and values help maintain mutual relationship and interconnectedness which are intrinsic to the Nepali social life and community order. This can be said that litigation and court adjudication cannot align with and suited to the resolution of disputes at the local level. The judicial committee should therefore not be required to follow the judicial procedures for resolution of the disputes. Adhering to the simple procedure of mediation will make the judicial committee competent enough to resolve disputes at the local level. Mediation (Melmilap) should therefore be promoted at local level that reflects the long embedded conventions and practices in the Nepali social traditions.