Issues For Constitutional Review

Nepal Bar Association (NBA) team met with Prime Minister KP Sharma Oli the other day and presented a list of suggestions that need to be taken into consideration while the issues relating to amendment to the constitution are deliberated during the upcoming days as agreed by the ruling NC-UML coalition. The issues incorporated in the list presented to the Prime Minister contain several important aspects especially related with the reform of judiciary and system of dispute resolution in the country. One point that has caught the attention of this writer is the reform in the jurisdiction of the Judicial Committee at the local level which is provisioned in the article 217 of the constitution. Since the jurisdictional authority of the Judicial Committee to give verdict in the cases has been questioned from jurisprudential point of view, the NBA suggestion to limit the Judicial Committee to resolve cases using mediation only is appropriate. 

Not very long back provision was made in the law to inflict harsher punishment especially against the persons occupying the position of authority if they were found involved in mediating and reconciling disputes related with rape and serious sexual offences. In fact, the provision had been directed against the members of the Judicial Committee at the local level as several news reports indicated that some of the local judicial committee members were alleged in reconciling and settling the cases and disputes appertaining to rape and sexual offence in rural communities of Nepal. 

Serious offences

They might have got involved in such a legally prohibited acts due to lack of knowledge and awareness on the limits of their jurisdictions and competence. Moreover, in some rural municipalities and municipalities some instances that occurred during the preceding years have given rise to the grounds for making an inference on the limits of Judicial Committee's   knowledge and capacity. It appears that they consider themselves to be as competent as the court of law and therefore indulge in deciding cases at the neglect of their jurisdiction, fairness and norms of justice.   

The way judicial committees in some local governments executed their role considering   themselves as if they were like judges in the court of law made them tempted to tackle the serious offences like forced rape and sexual assault, among others. This should be the reason why the stringent legal provision has been made to bar the local justice institutions like judicial committee and other traditional justice actors and law enforcers including elders of the different ethnic groups from abusing their authority through resort to conciliation and arbitration on some such offences as rape and forced child marriage.

The local government leaders elected through multiparty competition in a democratic system   are generally entrusted with mandates and functions for legislating and executing administrative, development and governance-related functions at the local level. They should not, therefore, be required to execute judicial tasks and functions especially handing decision to distinguish right from wrong.  Doing so will lead to making them unpopular and violate the principles of the checks and balances which is fundamental to the working of democratic polity. 

The news reports in the media time and again indicate that the Judicial Committees local governments have resolved disputes and cases breaching the jurisdictions set by the law.  Judicial Committees and justice actors have been found going beyond their jurisdictions in handling complaints which they should not have executed and earned indictment for breach of their jurisdictions.

Needless to say, Nepal has a rich tradition of consensual settlement of the community based disputes. Community leaders are conversant with the technique of consensus based dispute resolution. Moreover, ethnic communities have their own system of dispute resolution that operate outside the state and its institutions. The focus of community based mediation and arbitration is on reconciliation and restoration of harmony and relationships. The disputes in the ethnic communities are viewed as that of communities, not of the individuals involved in the cases. 

Dispute resolution 

Mostly if disputes arise between two persons, they are inclined to settle the disputes by themselves through negotiation or at the behest of the elders and trusted people in the community. Besides these traditional justice mechanism, there are other forums and institutions active in resolving disputes in local communities. As the people in the communities have been organised to cater to different social, cultural and economic functions, community based groups and organisations have also taken on the role to resolve disputes at the local level.      

Prominent among the groups in undertaking the responsibilities in resolving disputes in communities have been forestry user groups, water user groups, mother groups and several category of local groups. Political party functionaries are also involved in settling disputes related with different social and political functions including development projects, their prioritisation, selection and implementation at the local level. As plurality of actors and institutions are involved in settling disputes in rural communities, there is likelihood that they breach the boundaries set by the law as they may not be aware of legal provisions and procedures. 

It is time to take stock of the various actors and modes of dispute resolution at local level and examine to what extent they follow the norms and values of justice, uphold the boundaries defined by law. Local justice actors including Judicial Committees need to be trained properly and adequately to ensure that they do not breach the boundaries and limits set and defined by the law of the land. Moreover, as suggested by NBA, the article 217 of the constitution should be amended so as to ensure that the politically elected local Judicial Committee members refrain from behaving as if they were justices in the court of law.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)